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Successful appeal against dismissal automatically revives contract of employment

Successful appeal against dismissal automatically revives contract of employment

Cloisters’ barrister Nathaniel Caiden appeared for the successful appellant in Salmon v Castlebeck Care (Teesdale) Ltd and Ors, an important judgment from the Employment Appeal Tribunal about the effect of a successful appeal on an employee’s contract of employment.

The Appellant, Mrs Salmon, was employed by Castlebeck Care until she was summarily dismissed for alleged gross misconduct on 10 July 2013. Her dismissal occurred prior to a TUPE transfer to Danshell Healthcare Limited, although the dismissal was accepted as not being caused by the transfer.  After the date of the TUPE transfer the transferring HR Director decided that her dismissal was unsafe but this was never communicated to Mrs Salmon, nor was she told that she was reinstated. Instead Danshell Healthcare directed that a settlement agreement should be negotiated but this too was never pursued. Before the Employment Tribunal, Mrs Salmon argued that as her appeal, which was a contractual right, had been successful she must have transferred to Danshell Healthcare in line with the previous authority of G4S Justice Services (UK) Ltd v Anstey [2006] IRLR 588 (which established that upon one being ‘reinstated’ following an appeal the employee is treated as if he/she was employed immediately prior to the transfer and duly transfers to the transferee). However, the Employment Tribunal rejected this contention and held that Mrs Salmon could only pursue a claim against Castlebeck Care who were in administration.

The EAT, however, overturned the Employment Tribunal’s judgment. It held that, where an employee successfully appeals against dismissal under a contractual appeal procedure, the contract of employment is revived automatically, without the need for the employer to make a specific decision that the employee should be reinstated. Accordingly, Mrs Salmon had transferred to Danshell Healthcare (following G4S Justice Services (UK) Ltd v Anstey [2006] IRLR 588) and her claim against dismissal was against Danshell Healthcare.

The EAT also held that:

  1. the fact that the employer has not communicated the result of the appeal to the employee does not prevent the revival of the contract from taking effect (judgment at[36]-[37]);

  2. If an appeal against a dismissal is ‘successful’, the employment contract is (automatically) revived and there is no need for an employer to expressly order any reinstatement;

  3. On the previously undecided point in case law, there is no need for an appeal decision to be communicated for it to be effective (in contrast with the case law on dismissals, where communication is needed) (judgment at [40]-[41], [44]).

Finally, the EAT in its judgment also:

  1. makes observations about the length of Notices of Appeal and their contents (judgment at [48]-[51]). In brief, lengthy notices of appeal are to be discouraged and advocates should endeavour to have concise grounds of appeal with, perhaps, a small amount of explanation to enable it to be sufficiently assessed at the permission stage.

  2. expresses the view that, as there is an implied term requiring the employer to inform the employee of the outcome of an appeal, failure to do so amounts to a repudiatory breach of contract (judgment at [47]).

Nathaniel Caiden was instructed by Afshin Bemani, Senior Legal Officer & Solicitor at the Royal College of Nursing.

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