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The Effect of a Successful Appeal Against Dismissal
Upholding an appeal under a disciplinary policy automatically reinstates contract unless a contractual term says otherwise.
The Employment Appeal Tribunal (EAT), in Salmon v Castlebeck Care (Teesdale) Limited and Danshell Healthcare Limited and others, has confirmed that where an employee successfully appeals against dismissal under a contractual disciplinary procedure, they are automatically reinstated and the contract of employment is automatically revived as if the original dismissal had never taken effect.
Mrs Salmon was summarily dismissed by Castlebeck Care Limted (Castlebeck) on 10 July 2013 for alleged gross misconduct. She appealed against the decision in accordance with Castlebeck’s contractual appeal procedure.
The appeal was heard by Castlebeck’s HR Director on 17 September 2013, but not until his employment, along with the entire business, had transferred to Danshell Healthcare Limited (Danshell) on 4 September 2013. He determined that Mrs Salmon's dismissal was unsafe and, therefore, that her appeal succeeded. However, Danshell did not communicate the outcome of the appeal to Mrs Salmon or expressly indicate that her employment had revived. Instead, they instructed an employment consultant from Peninsula to agree a settlement with her.
Mrs Salmon presented a claim of unfair dismissal. The Employment Tribunal (ET) upheld the claim against Castlebeck for the original dismissal, but dismissed her claim against Danshell on the basis that she was not employed immediately before the transfer. In support of that conclusion the ET cited the fact that there had been no clear decision to reinstate Mrs Salmon, and suggested that the appeal decision “is not a decision until it is communicated to the employees involved in the appeal process.”
The EAT disagreed. It concluded that it is implicit of any system of appeal that the appeal panel has the right to reverse or vary an earlier decision. Where the original sanction was dismissal, any success on appeal means the dismissal does not take effect. Therefore, where an appeal against dismissal is successful, the contract of employment is automatically revived unless there is a contractual term that says otherwise.
The EAT stressed that whilst there is a requirement to communicate a decision to an employee to dismiss them for that to be effective, there is no such requirement for the outcome of an appeal to be effective. The reinstatement is automatic if the employer upholds the employee’s appeal.
Accordingly, Mrs Salmon was deemed to have been employed immediately before the transfer and was entitled to pursue her claim against Danshell.
Interestingly, at the EAT Danshell attempted to argue that it was not for them to determine Mrs Salmon’s appeal. It is normal practice, where an employee is dismissed prior to a qualifying transfer, for the transferor (eg Castlebeck) to hear an appeal, and not the transferee (Danshell). Therefore, Danshell argued that this is what should have happened. However, whilst the EAT accepted that this is a point that would merit further investigation, it had not been raised as an argument at the ET, and so could not be dealt with as part of the appeal. Nevertheless, it was accepted that the parties had consented to Danshell hearing Mrs Salmon’s appeal.