Appeals against Dismissal
27 January 2015
Where an employer decides that an appeal against dismissal should succeed, is communication of the decision necessary to revive the contract?
No, held the EAT in Salmon v Castlebeck Care, upon an appeal succeeding there are no further steps that are needed in order to revive the contract.
Daniel Barnett’s employment law bulletin summarises:
Mrs Salmon was dismissed for gross misconduct prior to a TUPE transfer. After the date of the transfer, the transferring HR Director decided that her dismissal was unsafe. She did not communicate that decision or make any direction as to reinstatement, but directed an employment consultancy to negotiate a settlement (although this never actually occurred).
The EAT, allowing Mrs Salmon’s appeal, held that once an appeal against dismissal under a contractual appeal procedure has been upheld, the contract is automatically revived. There is no need for a separate reinstatement decision or communication of that decision. The situation was not analogous to that in which an employee is notified of a dismissal (in which case communication is necessary for the decision to be effective).
Mrs Salmon was therefore employed immediately before the transfer and entitled to pursue her claim against the transferee as per G4S Justice Services (UK) v Anstey.