Court of Appeal
In the circumstances of the case, the Employment Appeal Tribunal was correct to dismiss the claimant's claim for unfair dismissal where in accordance with his contract of employment an internal company appeal substituted demotion for dismissal with retrospective effect so as to treat R as if he had never been dismissed. It was irrelevant that at the instant of the claimant complaining to an employment tribunal his original penalty of dismissal still stood.
The claimant (R) appealed the decision of the Employment Appeal Tribunal that R had not been dismissed from his employment with the defendant (W) and accordingly had no claim against W for unfair dismissal. R was employed by W as a chef. As a result of alleged misconduct disciplinary proceedings were brought against R and he was dismissed. Just before a decision in an internal appeal was reached R appealed his dismissal to an employment tribunal. The internal appeal resulted with a penalty of demotion being substituted for dismissal and R was notified that the period between his dismissal and the result of the appeal was being treated as a period of suspension without pay. R continued his appeal to the tribunal, which considered as a preliminary issue whether R had been dismissed from his employment with W. The tribunal held firstly that R was not dismissed by W and secondly his contract of employment provided for an appeal process, and allowed disciplinary sanctions of suspension without pay, and demotion which had been applied in R's case. It further held that no new contract was entered into when R was demoted to the lower position. Accordingly it dismissed R's claim for unfair dismissal. R appealed to the appeal tribunal which upheld the tribunal's decision and held that demotion did not involve termination of R's old contract, that the internal appeal had a retrospective effect so as to treat R as if he had never been dismissed and that the fact that at the time R complained to the tribunal his dismissal still stood was an irrelevant matter. R submitted, inter alia, that at the time of his appeal to the tribunal he was dismissed and that fact was determinative of the issue to the extent that subsequent events were irrelevant. W submitted, inter alia, that once the decision to reinstate R had been taken there ceased to be any dismissal of which R could complain.
[2004] EWCA Civ 900,[2005] ICR 254,[2004] IRLR 788.
