The EAT has ruled that where an appeal panel decided that an original dismissal was "unsafe", the employee's contract of employment was automatically revived. There was no need for the decision on appeal to have been communicated to the employee for it to be effective.
Salmon v Castlebeck Care & others
Mrs Salmon was summarily dismissed for gross misconduct by Castlebeck Care Teesdale Limited ("Castlebeck") on 10 July 2013. She had a contractual right to appeal, which she exercised. On 4 September 2013, the business of Castlebeck transferred to Danshell Healthcare Limited ("Danshell") under TUPE. Mrs Salmon's appeal was heard on 17 September 2013 by employees of Danshell, who had transferred to Danshell from Castlebeck's employment under TUPE.
Mrs Salmon's appeal was deemed "unsafe" by the appeal panel but no express decision was made to reinstate her employment or to indicate that her employment had revived as a result of the successful appeal. Instead, Danshell instructed their external employment consultants to agree a settlement agreement with her. Mrs Salmon was never told of the outcome of her appeal. No agreement was reached and she brought a claim for unfair dismissal against Castlebeck and Danshell.
The Employment Tribunal upheld the claim against Castlebeck but dismissed the claim against Danshell holding that the latter had never been her employer. The Tribunal considered that for the appeal outcome to be effective, there needed to be a clear decision to reinstate her following the outcome of the appeal hearing, and for the reinstatement decision to be communicated to her; neither of which had happened here. Mrs Salmon appealed.
The EAT upheld the appeal. It held that the Tribunal had erred in "looking for a separate decision, consequent upon a successful appeal, that there should be 'reinstatement'". It considered that there was no need for an express revival or reinstatement of employment following a successful appeal outcome and that "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".
It also held that there was no need for the successful appeal outcome to have been communicated to Mrs Salmon for it to be effective. The position for appeal outcomes is different to a decision to dismiss, which does need to be communicated to an employee to be effective, (Gisda Cyf v Barratt), not least so as to give clarity on when time starts to run for limitation purposes. Once a decision to allow the appeal is made, the decision automatically revives the contract of employment unless there is some contractual term or provision that prevents it, and there is no need for that decision to be communicated for it to become effective.
As the Tribunal had found on the facts that there had been a successful appeal in Mrs Salmon's case, it followed that she was employed immediately before the transfer and that her claims were properly against Danshell and not Castlebeck.
It is clear from this decision that a successful appeal against dismissal will generally automatically revive the contract of employment. The facts of this case are fairly unusual, but employers who wish to take steps to protect themselves against this decision might consider expressly stating in a disciplinary policy that the outcome of an appeal is not final until it is confirmed in writing to the employee. Employers should also ensure that their appeal panel understands the implications of any decision they make, and where appropriate, take legally privileged advice on the decision before issuing it.