Appeal from dismissal automatically revives contract

Posted on January 22, 2015

The EAT has held in Salmon v Castlebeck Care (Teesdale) Ltd and Others that the contract of employment is automatically revived where an employee successfully appeals against dismissal under a contractual appeal procedure, without the need for a specific decision from the employer that the employee should be reinstated.

The claimant in the above case was dismissed for gross misconduct from employment with Castlebeck Care Ltd, against which she appealed. The appeal was heard by the HR Director who decided that the dismissal decision was ‘unsafe’ but made no express decision to reinstate the claimant, nor did he communicate to the claimant that her appeal had been successful. Shortly after the claimant’s dismissal from Castlebeck Care Ltd, the business transferred to Danshell Healthcare Ltd under the TUPE Regulations 2006. When the claimant sought to bring a claim against Danshell Healthcare Ltd, they argued that as she was not employed in the transferring business immediately before the transfer, her employment had not been transferred to it, and therefore her claim should be dismissed.

An employment judge accepted Danshell Healthcare Ltd’s argument and dismissed the claimant’s claim on the basis that there had been no clear decision by the employer to reinstate the claimant, and no clear decision had been communicated to the claimant.

The EAT found that the employment judge had erred in looking for a separate decision for reinstatement. The EAT also found that it is not necessary to communicate the result of a successful appeal in order for it to have effect. Therefore the claimant’s contract was revived by her successful appeal, meaning she was employed immediately prior to the transfer and so was entitled to bring her claim against Danshell Healthcare Ltd.