In Thomson v Barnet Primary Care Trust the EAT ruled that an employee, who was summarily dismissed and then reinstated, with full back-pay, after her appeal was upheld, was then constructively dismissed when she resigned because of the terms imposed for her return to work. The terms included: (i) full assessment of her competency; (ii) an action plan, post-competency assessment to ensure improved performance levels were maintained; and (iii) a mentoring programme with an associated training programme. The tribunal had erred when deciding that the imposed new terms were in effect a new contract which Thompson had accepted. The evidence clearly demonstrated that although she had been reinstated, and the dismissal had ‘vanished’, she never actually returned to her post, and the employer’s handling of the whole disciplinary process, together with the imposed new conditions, amounted to a repudiatory breach of her contract.

Comment: While this case confirms the principle that if an employer relies on a provision in a contractual disciplinary procedure to impose an alternative sanction, where an appeal against dismissal is upheld, then the dismissal ‘vanishes’, it also highlights that the terms of the reinstatement must be in accordance with the contract. If the terms of the reinstatement constitute a fundamental breach of contract, then the problem is not being solved, it simply creates another headache for the employer.