In Salmon v Castlebeck Care (Teesdale) Ltd and ors, the EAT has held that where an employee successfully appeals against dismissal under a contractual appeal procedure, the contract of employment is revived automatically, without need for the employer to make a specific decision that the employee should be reinstated. The EAT also held that the fact that the employer has not communicated the result of the appeal to the employee does not prevent the revival taking effect.
S was employed by CC Ltd until she was dismissed for gross misconduct on 10 July 2013. She lodged an appeal against the decision to dismiss under the contractual appeal procedure. Meanwhile, on 4 September, CC Ltd’s business transferred to DH Ltd under the TUPE Regulations 2006. S’s appeal was heard on 17 September by CC Ltd’s HR Director, whose employment had transferred under TUPE to DH Ltd. The HR Director decided that the dismissal decision was ‘unsafe’ but made no express determination that S should be reinstated or that her contract should be revived, nor did he inform S that her appeal had been successful. Instead, DH Ltd gave instructions to an employment consultancy to conclude a settlement agreement with S. When S later sought to bring a claim against DH Ltd in respect of her dismissal, DH Ltd argued that her employment had never transferred to it, since she was not employed in the transferring business immediately before the transfer, as TUPE requires.
An employment judge accepted DH Ltd’s argument and dismissed S’s claim. The judge referred to G4S Justice Services (UK) Ltd v Anstey (Brief 806), where the EAT held that employees awaiting the outcome of appeal hearings at the date of the transfer, who eventually succeeded in their appeals, did transfer to the transferee. The judge considered that the reasoning in that case required there to have been a clear decision on the employer’s part not just to allow the appeal but to reinstate the employee. This was missing in the present case. The judge also thought it relevant that no clear decision had been communicated to S. In the judge’s view, ‘a decision is not a decision until it is communicated to the employees involved in the appeal process’. S appealed to the EAT.
The EAT allowed the appeal. Mr Justice Langstaff, President of the EAT, did not read Judge Peter Clark’s judgment in Anstey as requiring a separate decision on reinstatement in order for a contract to be revived. Langstaff P noted that the effect of a successful contractual appeal was decided by the Court of Appeal in Roberts v West Coast Trains Ltd (Brief 767), to which Peter Clark J referred. In light of this case law, the employment judge had erred in the present case in looking for a separate decision that there should be reinstatement. There is no reason in principle why, in any event, it would be necessary for there to be an express revival or reinstatement since it must be implicit in any system of appeal, unless otherwise stated, that the appeal panel has the right to reverse or vary the decision made below.
As for whether it was necessary for the employer to communicate the outcome of the appeal in order for the contract to be revived, Langstaff P noted that this was not to be equated with the situation in which an employee is told of his or her dismissal. Then, communication is needed. In contrast, where a decision has been taken to allow the appeal, the decision has the effect of reviving the contract subject only to there being some contractual term or provision which prevents it. It is not necessary, in order for a successful appeal to have that effect, that there should be a communication of the result. Accordingly, on the facts of the present case, S’s contract was revived by her successful appeal. She was therefore employed immediately prior to the transfer and so was entitled to bring her claim against DH Ltd.