Does an employer need to tell an employee who has appealed against dismissal that their appeal was successful in order to restore the original contact of employment?
Mrs Salmon was dismissed for gross misconduct before the business in which she was employed (Castlebeck Care) transferred to Danshell Healthcare Limited under TUPE.
Mrs Salmon was dismissed on 10 July 2014 and exercised her contractual right to appeal. The transfer on her employer’s business took place on 4 September 2013 but it was not until after the transfer that her Appeal was heard.
The HR Director responsible deemed the dismissal ”unsafe” but did not make any express decision to reinstate her. Instead, Danshell instructed its advisors to arrange a Settlement Agreement with Mrs Salmon.
No agreement was reached. Mrs Salmon was not told the outcome of the Appeal but brought a claim of unfair dismissal.
Mrs Salmon argued that her employment had automatically transferred to Danshell under TUPE and that Danshell’s behaviour towards her amounted to effectively subsequently dismissing her.
The EAT in Salmon v Castlebeck Care, agreed the Appeal. It recognised, as did the Tribunal, that even though the outcome of the Appeal had not been communicated to Mrs Salmon, there had nevertheless been an outcome in her favour and as a matter of law, her contract of employment was fully revived.
As a result, Mrs Salmon was employed immediately before the transfer took place and entitled to pursue her claim against the transferee.