Salmon v Castlebeck Care (Teesdale) Ltd and another UKEAT/0304/14; (2015) EMPLR 022
Employment Appeal Tribunal (EAT)
The effect of a successful appeal against dismissal is to reinstate the employee’s employment so that the employee is treated as never having been dismissed. That is so even if no decision is taken to reinstate the employee and even if the outcome of the appeal is not communicated to the employee.
Castlebeck dismissed S and two others for gross misconduct. The business was then transferred to Danshell Healthcare. Appeal hearings against the dismissals were heard after the transfer. Those hearing the appeal concluded that S and one of the other dismissed employees should not have been dismissed. Lawyers were instructed to negotiate settlement agreements. That decision was never communicated to them. S complained that her dismissal was unfair.
The tribunal had to decide which employer, Castlebeck or Danshell, should be liable. If S was employed immediately before the transfer, then she would have transferred under TUPE. She would only have been so employed if the effect of the appeal was to treat S as never having been dismissed.
Danshell argued the appeal did not have that effect for two reasons:
(2) the outcome of the appeal was never communicated to S so could never have taken effect.
The EAT disagreed with both arguments. The success of the appeal automatically had the effect of reinstating the employee, even though the employer decided not to reinstate and even though the decision was not communicated.
Law and Practice
The status of employment rights on the transfer of an undertaking is an extremely complex area of...