Case of the week: Piper v Maidstone and Tunbridge Wells NHS Trust

Piper v Maidstone and Tunbridge Wells NHS Trust

The claimant was employed by the respondent as a lead chaplin. Disciplinary action was taken against him and the decision was taken to dismiss him for gross misconduct. He exercised his contractual right of appeal against the decision. The respondent’s decision on appeal was to substitute the decision to dismiss with:

  • a final written warning;
  • a demotion;
  • a pay cut; and
  • a transfer to a different location.

An issue of key importance in the case was that the claimant’s terms and conditions required that, if a sanction short of dismissal was imposed, it needed to be accepted by the employee.

The claimant lodged an employment tribunal claim after the appeal outcome, complaining of unfair dismissal and seeking reinstatement to his original role. The respondent sought to challenge the tribunal’s jurisdiction by arguing that there had been no dismissal as a result of the successful appeal. The question therefore before the tribunal was: at the time of lodging the claim, had the claimant been dismissed?

Tribunal findings

The tribunal relied on Roberts v West Coast Trains Ltd [2004] EWCA Civ 900 CA in holding that there had been no dismissal. The appeal outcome had the effect of overriding the decision to dismiss taken at the original disciplinary decision and the contract of employment was “revived” from that date. The tribunal therefore lacked jurisdiction to hear the merits of the case.

EAT decision

The claimant appealed against the tribunal decision. The basis for the appeal was that the tribunal had been wrong to distinguish the case of Saminaden v Barnet Enfield and Haringey NHS Trust EAT/0018/08.

In Saminaden, the employee’s contract stipulated that “downgrading will require the written agreement of the employee concerned”. The Employment Appeal Tribunal (EAT) in that case held that, on the basis of contractual interpretation, the rejection of the lesser sanction by the employee meant that the prior dismissal remained effective. The contractual terms superseded the default position taken in Roberts and so the contract would be revived only if the employee agreed.

Contractual interpretation

The claimant’s contractual terms were not in dispute between the parties. These stated that: “there may occasionally be exceptional circumstances where management take the view that, while dismissal may be warranted, organisational and employee circumstance may best be served by action short of dismissal itself. If the employee does not agree with this course of action, dismissal is the only alternative.”

The EAT rejected the tribunal’s finding that the facts in Saminaden were materially different from the facts before it.

The contract terms therefore superseded the default position of Roberts that reinstatement or re-engagement would revive the contract of employment. It was therefore a question for the EAT of what was meant by the terms of the contractual provision. The EAT felt that it was clear that the wording required the agreement of the claimant to accept the lesser sanction. The fact that he had not done so meant that the original dismissal should stand as “the only alternative” described in the contract.

The EAT therefore held that the tribunal had jurisdiction to hear the claim and remitted the case to a different tribunal to determine the merits of the complaint.

Reinstatement or re-engagement

The EAT highlighted in its reasoning that there is a clear distinction between the remedy sought by the claimant, “reinstatement”, and the remedy of “re-engagement”. The former has a precise meaning in that the revival of the contract of employment will be on the same terms as prior to the dismissal. Reinstatement is therefore different from re-engagement, which may involve some element of demotion or detrimental change to the terms and conditions of employment to those in place prior to the dismissal.

Such a distinction is key when considering the contractual wording in cases like this to establish what will and what will not revive the employment.

The findings above led the EAT to conclude that the tribunal’s decision that the claimant had not been dismissed and therefore the tribunal lacked jurisdiction was wrong. The EAT remitted the case back to an employment tribunal to hear the merits of the case.

Kate Hodgkiss, partner, DLA Piper

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