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Employment Law Case Update: Patel v Folkestone Nursing Home

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This case illustrates how, in certain circumstances, an employee may still be able to bring a claim for constructive unfair dismissal where their employer has failed to follow a fair procedure or address all relevant issues at appeal stage.

Mr Patel was employed as a Healthcare Assistant in the Folkestone Nursing home. He was dismissed for gross misconduct in April 2014 following a disciplinary finding that he had slept on duty and falsified residents’ records. Mr Patel was informed that this would be reported to the care homes regulator because his actions had put residents at risk. Mr Patel then pursued an internal appeal against his dismissal.

In June 2014, Mr Patel was informed that his appeal had been successful and he would be contacted to arrange returning to work. The letter confirmed that Mr Patel had only slept during rest breaks so had not breached any rules, but the letter failed to address the allegation of falsified records and the referral to the regulator. Mr Patel asked for clarification on these points; when he didn’t receive clarification, he chose not to return to work and brought a claim for constructive unfair dismissal.

The case went up to the Court of Appeal, which upheld the decision made by the Employment Appeal Tribunal (EAT). The EAT stated that it is ‘clearly implicit’ that by appealing a dismissal an employee is effectively saying that if the appeal is successful their dismissal will be reversed and will forfeit the right to bring any further unfair dismissal claims.

However, in exceptional circumstances an employee may still be able to claim for constructive unfair dismissal if a fair procedure was not followed, or if the decision fails to deal with any of the key issues which led to the original dismissal.

The Court of Appeal held that in the letter given to Mr Patel informing him of his successful appeal there were ‘curious and unsatisfactory terms’ which failed to deal with the allegation of falsification of records - breaching the employer’s duty to maintain trust and confidence. Mr Patel therefore had sufficient grounds for a claim for constructive unfair dismissal.

While this decision is reassuring to employers that a successful appeal can rectify an unfair dismissal, this case emphasises the importance of attention to detail when explaining the reasoning behind the successful appeal.

It is crucial to fully explain the findings in relation to each charge and the status of any actions which have been taken against the employee.

This article is from our weekly Employment Law Newsletter published on 25/10/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.