Salmon v Castlebeck Care

The EAT confirmed in this case that, where an employer decides that an appeal against dismissal should succeed, communication of the decision is not necessary to revive the contract.

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. Mrs Salmon was therefore employed immediately before the transfer and entitled to pursue her claim against the transferee.

In Practice

Employment Associate Paul Burton says, "Many people will be surprised by this decision, as it is the opposite to that in which an employee is notified of a dismissal (in which case communication is necessary for the decision to be effective). The reason for this will be the usual consideration by a tribunal that an employer is in a more powerful position than an employee. Therefore, any close decision should come down on the side of the employee."

We have offices in the Christchurch, New Milton and the New Forest. Our Employment team also cover Bournemouth and Poole. For a free initial chat, please call 01202 499255 and Paul or a member of the team will be happy to discuss any questions that you may have.