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Unfortunately for applicants, tribunals can reduce the amount of an unfair dismissal award if they fail to appeal against a decision to dismiss them. The problem then is that, as a result of the appeal, applicants can end up being reinstated in a job that they no longer want. This is exactly what happened in the case of Roberts v West Coast Trains Ltd.
Mr Roberts had been employed since 1975 as a chef by West Coast Trains (and their predecessors). Following a disciplinary hearing for alleged misconduct, he was dismissed on 6 November 2001. Mr Roberts appealed against that decision, but before he knew the outcome of the appeal, he started proceedings in the employment tribunal for unfair dismissal.
The internal appeal hearing took place in February 2002, at which it was decided not to dismiss Mr Roberts, but to demote him. The company said it would treat the period from November 2001 to February 2002 as a period of suspension without pay.
However, Mr Roberts refused to accept the offer of reinstatement and was deemed by the company to have resigned with effect from 10 August 2002 when he failed to return to work after a period of sickness absence. He continued to pursue his claim for unfair dismissal.
When the case was heard at the employment tribunal, West Coast Trains argued that, as Mr Roberts' appeal had been successful and resulted in his reinstatement, his contract of employment had not been terminated.
If he had not been dismissed, then he could not claim unfair dismissal. The tribunal agreed, and the employment appeal tribunal found nothing wrong with that decision.
Mr Roberts argued that he had been dismissed by the company, as was clear from the letter of notification following the disciplinary hearing. At the time he started his claim in the employment tribunal, he was still dismissed. That, he argued, was determinative of his right to claim unfair dismissal.
West Coast Trains, however, argued that although its initial decision was to dismiss him, Mr Roberts had launched an appeal in accordance with his rights under his contract.
The effect of that decision was to resurrect his contract, so that even though it had been terminated when he made the claim, it had been revived by the time the proceedings had come to a hearing. He had, therefore, continued to be employed.
Unfortunately for Mr Roberts, the Court of Appeal agreed with the decision of the lower courts. It said that the documents containing the disciplinary procedures were clearly part of his contract of employment.
These allowed for a range of sanctions to be imposed at the first hearing and on appeal. They also clearly allowed an appeal decision to act as a substitute for the decision at the original hearing. The decision to reinstate did not, therefore, create a new contract for a new position.
It also said that the fact that Mr Roberts had lodged his employment tribunal claim between the initial dismissal and his subsequent demotion at appeal was irrelevant.
Although Mr Roberts appealed against his dismissal, it was clear he no longer wanted his job back. The problem for him was that he had lodged an unfair dismissal claim in order to win an award of compensation for the loss of his job, which might have been reduced if he had failed to appeal internally.
The key to understanding this case lies in the fact that the disciplinary procedure formed part of Mr Roberts' contract. This is unusual.
Because of that, the House of Lords held that his contractual appeal process survived the dismissal and so the contract did not end until the appeal decision was given.