Phoenix Academy Trust v Kilroy UKEAT/0264/19/AT

Appeal against the ET’s decision upholding the Claimant’s claim of constructive unfair dismissal. Appeal allowed.

The Claimant, an experienced teacher, faced disciplinary proceedings which led to his dismissal by the Respondent. He exercised his right of appeal and, following the appeal hearing, the dismissal decision was overturned and he was reinstated, subject to a final written warning. The Claimant stated that it was "unrealistic" to expect him to return to work, in view of how he had been treated, and he brought proceedings for constructive unfair dismissal. The ET, having concluded that he had not affirmed his contract by exercising his right of appeal, upheld his claim. The Respondent appealed on the ground that the Claimant had, by invoking the appeal process, affirmed his contract of employment and thereby disabled himself from claiming constructive unfair dismissal.

The EAT held that the ET's conclusion about the effect of the Claimant's adoption of the contractual appeal process could not stand, in light of the Court of Appeal decisions in Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1 and Folkestone Nursing Home Ltd v Patel [2019] ICR 273, which were not referred to in the ET. Accordingly, the matter would be remitted to the same ET for reconsideration.

Published: 05/08/2020 14:09

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