In the case of Phoenix Academy Trust v Kilroy 2019, following performance investigations and a finding of gross negligence, the employee Mr Kilroy (K) was informed over the telephone of his summary dismissal but shortly after this communication on the same day (K) proceeded to resign alleging constructive dismissal and proceeded to instigate the internal contractual appeal procedure over his dismissal.
(K) made clear to the employer that irrespective of the outcome of the appeal that he had no intention of returning to work and thus lodged an employment tribunal claim on unfair dismissal.
The internal appeal resulted in (K)’s appeal being upheld with (K) being reinstated on a final written warning but (K) refused to return to work and continued with his unfair constructive dismissal claim.
Employment Tribunal
The Employment Tribunal (ET) held that (K) hadn’t affirmed the breach of the implied term of trust and confidence by commencing the appeal process and that he had made it clear to his employer on a number of occasions that he did not intend to return to his employment irrespective of the outcome of his appeal thus had been dismissed unfairly.
The employer appealed to the Employment Appeal Tribunal (EAT) and the (EAT) held that regardless of whether (K) invoked the right to appeal with no intention of returning back but under current law an overturned disciplinary decision on appeal had the effect of erasing the original dismissal as if it had never happened thus a claim could not be brought in respect of that dismissal and if (K) remained unhappy with the outcome of the appeal, his only option was to pursue a claim in constructive dismissal by the resignation and the case was sent back to the ET for reconsideration.
On the facts by (K)’s adoption of the contractual appeal process, he had treated the contractual relationship between him and his employer as continuing thus allowing the employer to then rectify the dismissal decision on appeal.
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