What happens when an employee is dismissed, there is a TUPE transfer, and the appeal is heard by the new employer but the employee is not told the outcome was successful?
In the case of Salmon v Castlebeck Care and others, the EAT decided that where an employee succeeds in an internal appeal against dismissal this had the effect of automatically reviving the contract of employment even where this was not communicated to them, and where the employment had transferred to a different employer under TUPE. Therefore, the employee’s job survived with the new employer.
On 10 July 2013, Mrs Salmon was dismissed for gross misconduct by Castlebeck Care. She subsequently appealed, exercising a right under her contract of employment. On 4 September 2013, the assets of Castlebeck transferred to Danshell Healthcare. On 17 September 2013, a HR Director of Danshell heard Mrs Salmon’s appeal. Her dismissal was deemed to be “unsafe”, although no express decision was made to reinstate her and she was not informed that her contract of employment had been revived. In fact, Mrs Salmon was not actually informed of the outcome of her appeal.
Mrs Salmon claimed unfair dismissal against both Castlebeck and Danshell, even though both could not be deemed to have employed her at the time of her dismissal. The Employment Tribunal decided that she had been dismissed by Castlebeck and not Danshell, who had not employed her. On appeal, the EAT said this was wrong, and held that Mrs Salmon’s claim actually lay against Danshell, because her employment had been revived by the appeal outcome and her employment had therefore transferred. There was no requirement for the appeal decision, and the fact that her contract had been automatically revived as a result, to be positively communicated to her. Her claim against Castelbeck was discharged.
Where there is a dismissal, the dismissal needs to be actually communicated to the employee. However, where an internal appeal succeeds the contract will be automatically and immediately revived without the employer taking further steps and positively communicating that fact to the employee. Employers should therefore be wary of this when dealing with internal appeals.