On 20 February 2003 an employment tribunal held that the Applicant Mr Roberts had not been dismissed by West Coast Trains Ltd. The Applicant appealed this decision but the EAT dismissed the appeal and so too did the Court of Appeal in a judgment delivered on 16 June 2004.
The facts of this case were that the Applicant was dismissed following a disciplinary hearing in respect of an allegation of misconduct against an employee. The Applicant appealed against this decision by invoking his employer's internal appeal procedure as outlined in his contract of employment. However, before the outcome of that appeal was known the Applicant launched proceedings in the employment tribunal claiming unfair dismissal. The internal appeal hearing was heard before the hearing by the employment tribunal and the outcome of this process was to revoke the employer's initial decision to dismiss him and reinstate him with demotion from senior chef to customer service assistant.
The Applicant did not return to work however and pursued his claim for unfair dismissal.
The question to be determined was whether or not he was dismissed at all if he accepted reinstatement, albeit with demotion, by the employer's appeal panel.
The Applicant contended among other things that at the time he had initiated proceedings before the employment tribunal, he had been dismissed and it was not relevant to consider what had happened after the issue of his complaint.
The Court of Appeal concluded that
• Both the tribunal and appeal tribunal had been entitled to come to the decisions that they had.
• Lord Justice Mummery said that the decision of the appeal body to reinstate the Applicant in a demoted position did not involve termination of the old contract and his re-engagement under a new contract since the dismissal and reinstatement were carried out in accordance with the original employment contract.
• If the Applicant had withdrawn his appeal he could have relied on the original decision to dismiss. The Applicant chose however to keep the appeal alive and in so doing took the risk that if he was subsequently reinstated in employment, his unfair dismissal claim would be defeated.
• The fact that the Applicant had started proceedings before the employment tribunal did not affect the legal position and was not legally relevant. The situation was not frozen at the time of the issue of proceedings before the tribunal, and turned solely on the particular contract in the instant case and the particular facts on the dismissal and on the appeal.