Labour & European Law Review Weekly Issue 410 11 March 2015
When an employer upholds an appeal against dismissal, the contract of employment is revived immediately. In Salmon v Castlebeck Care (Teesdale) and Danshell Healthcare Ltd, the Employment Appeal Tribunal (EAT) held that it was not necessary for the decision to be communicated to the employee for it to become effective.
Following Mrs Salmon’s summary dismissal for gross misconduct in July 2013, her employer’s business was transferred on 4 September under TUPE to another company, Danshell. Mrs Salmon’s appeal was heard on 17 September by the HR director who had previously worked for Castlebeck, and whose employment had transferred over.
He decided that her dismissal was “unsafe”, but did not tell Mrs Salmon. Nor did he make an express decision about whether she should be reinstated or whether her contract had been revived. Instead he reported his findings to the employment consultants who acted for Danshell. They were instructed to come to a settlement agreement with her.
Mrs Salmon brought claims for unfair dismissal against both Castlebeck and Danshell. Danshell argued that, as she was not a Castlebeck employee at the time that the business transferred over, her employment could not have transferred to them.
The tribunal allowed her claim against Castlebeck, but not against Danshell because of the decision in G4S Justice Services (UK) Ltd v Anstey. In this case, the employees were dismissed prior to the transfer but their appeals had not been heard. When these were allowed, the transferor reinstated them and the EAT held that their employment had transferred over to G4S.
On the basis of that decision, the judge took the view that the law required there to be not just a successful appeal, but also and separately a clear decision to reinstate which had to be communicated to the claimant. As Mrs Salmon had not been expressly reinstated, her claim against Danshell could not succeed.
The EAT, however, disagreed with the tribunal. Following the decision of the Court of Appeal in Roberts v West Coast Trains Ltd, it was clear that a successful appeal retrospectively revived the contract terminated by the earlier decision to dismiss “so as to treat the employee as if he had never been dismissed”. It was not necessary, therefore, to have a separate decision stipulating reinstatement (which meant in this context reviving the contract).
Nor was it necessary to communicate the outcome of a successful appeal, unlike a situation in which an employee is told of their dismissal when communication is needed for the decision to be effective. In this case, Mrs Salmon’s appeal was successful and her contract was revived. She was therefore employed immediately prior to the transfer and was entitled to bring a claim of unfair dismissal against Danshell.
This case also confirms that in a TUPE context an employee who is dismissed before the transfer but whose appeal succeeds after the transfer will be regarded as assigned to the transfer and will be re-instated with the transferee.