When is a dismissal not a dismissal?

22 Feb 2013

Many HR advisers will be familiar with the cold shiver that passes down the back of the spine when a manager makes contact to say that they have just called an employee into their office and sacked them.

Sometimes there are commercial reasons behind an employer's decision not to follow a proper procedure in dismissing an employee and, of course, sometimes it is simply that a manager's common sense (and HR training!) have momentarily left the building.

Irrespective of the background to the matter, HR advisers and employers will sometimes find themselves in a situation where they are considering overturning an employee's dismissal on appeal.

It is often difficult, for internal political reasons, to overturn another manager's decision to dismiss an employee; however, once that particular minefield has been navigated safely, can you breathe a sigh of relief knowing that at least you are not facing a claim for unfair dismissal?

Not always, as the recent case of Reverend Stuart Piper v Maidstone & Tunbridge Wells NHS Trust shows.

Reverend Piper was employed by the Trust as a Chaplain and he was dismissed for gross misconduct with pay in lieu of his notice entitlement.  Reverend Piper appealed against his dismissal and, on appeal, the Trust decided to withdraw his dismissal and instead issue him with a final written warning and to downgrade him from a Band 7, Lead Chaplain, to a Band 6 Chaplain.  The material effect of downgrading Reverend Piper was that his salary reduced and his place of work transferred from Maidstone to Tunbridge Wells.

Reverend Piper rejected the Trust's decision and brought Employment Tribunal proceedings in which he maintained that his original dismissal remained in place and that it had been unfair.

Perhaps not unreasonably, the Trust defended Reverend Piper's claim on the grounds that his dismissal had been overturned and argued that, without a dismissal, there could be no claim for unfair dismissal.

It is hard to imagine too many employers not having sympathy with the Trust's position.  Indeed, the Ashford Employment Tribunal agreed and concluded that there was no dismissal and so it could not hear the claim.

Reverend Piper appealed to the Employment Appeal Tribunal which looked at whether or not the Trust had the right to overturn the original dismissal.  The most important document in considering this was the Trust's disciplinary procedure, which was contractual, provided that:

"There may occasionally be exceptional circumstances where management take the view that whilst dismissal may be warranted, organisational and employee circumstance may best be served by action short of dismissal itself.  In these circumstances, one of the following sanctions may be considered as an alternative to dismissal only.  These sanctions will normally be applied on a substantive basis. If the employee does not agree with this course of action, dismissal is the only alternative."

The Employment Appeal Tribunal (EAT) concluded that the final sentence was the key phrase and that this made it clear that action short of dismissal, such as that which the Trust sought to impose on Reverend Piper on appeal, required the consent of the employee.  As Reverend Piper had not agreed to the demotion, the Trust lacked the contractual right to impose it unilaterally and therefore the original dismissal stood.

Given that the disciplinary procedure was drafted in such a way as to be very fair to employees, the Trust was rather hoist by its own petard in this case.

Our view:

HR advisers and employers who have the fortune (misfortune surely? Ed) to speak to employment lawyers regularly will know that we talk about policies and procedures to the point of obsession.  This case is a reminder that it is not enough to simply have a procedure in place: make sure that there are no own goals in the procedure and make sure that anyone relying on the procedure understands exactly what they can and cannot do.