02 FEB 2017
Appeals - is a decision not a decision until it's communicated?
Solicitor, Veale Wasbrough Vizards
In Salmon v Castlebeck Care (Teesdale) Ltd, the EAT confirmed that where an employee successfully appeals against a dismissal their contract of employment is revived. This is the case regardless of whether the appeal decision is communicated to the employee. As this case highlights, this is an area that can catch out employers, particularly in the context of a TUPE transaction.
Ms Salmon was employed by Castlebeck Care but was dismissed for gross misconduct in July 2013. She appealed against this decision. Before the appeal was heard, a TUPE transfer took place whereby Castlebeck Care was transferred to DH Ltd. Ms Salmon's appeal was heard shortly thereafter by employees who had transferred under TUPE to DH Ltd. The appeal officer held that Ms Salmon's dismissal was "unsafe" but made no express determination regarding her reinstatement. The outcome of the appeal was not communicated to Ms Salmon.
Ms Salmon brought a claim for unfair dismissal against DH Ltd and Castlebeck Care. The ET dismissed her claim against DH Ltd on the basis that her contract had not transferred under TUPE. The rationale for this decision was that "a decision is not a decision until it is communicated".
The EAT overturned Mrs Salmon's appeal and found that:
- an express decision regarding "reinstatement" (i.e. revival of the contract) was not required
- it was not fundamental that the decision was communicated
The EAT judge stated that "any success on appeal [of a dismissal decision] means that the decision is one in which dismissal does not take effect, though some lesser sanction might". It follows that Ms Salmon was, in effect, not dismissed and was therefore employed by Castlebeck Care immediately before the TUPE transfer. Consequently, her contract of employment transferred to DH Ltd by operation of TUPE.
The EAT's decision is consistent with previous case law and is a useful reminder for employers to ensure that they consider outstanding appeals as part of their due diligence in a transaction context. Employers who fail to take this into account risk inheriting liability for employees (and potential claims) that they have not accounted for. More widely, the decision highlights the importance of communicating outcomes in line with ACAS standards, or indeed an employer's own disciplinary policy. Failure to do so could lead to allegations that a repudiatory breach of contract has occurred.