Salmon v Castlebeck Care (Teesdale) Ltd

A successful contractual appeal against dismissal automatically revives the contract of employment retrospectively, unless the contract provides otherwise. No separate express decision to reinstate, offer of a new contract, or communication of the appeal outcome is required. The question is whether, objectively, the appeal was allowed. Once the contract is revived, the employee is treated as employed immediately before a relevant transfer and may transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006. Failure to communicate the outcome may constitute breach of an implied contractual right to be told the result, but it does not prevent revival.

Mrs Salmon was summarily dismissed for alleged gross misconduct by Castlebeck before its undertaking transferred to Danshell. Her contractual appeal was heard after the transfer by officers employed by Danshell. The appeal outcome was that her dismissal was unsafe, but no separate order for reinstatement was made and the outcome was not communicated to her.

The Employment Tribunal held that the appeal had not resulted in effective reinstatement because there was neither a clear decision to reinstate nor communication of that decision. It rejected the claim against Danshell. The appeal concerned whether a successful contractual appeal itself revived the contract and whether communication was necessary before the contract could revive.

1. Appeal allowed. The Employment Tribunal’s decision was substituted by a decision that Mrs Salmon succeeded against Danshell. The claim against Castlebeck was discharged.

2. The Tribunal erred in requiring a separate decision to reinstate. The effect of a successful contractual appeal is retrospective revival of the contract of employment. It is unnecessary to order express reinstatement or offer a new contract, unless the contractual scheme provides otherwise. The word reinstatement may mislead because the relevant concept is revival of the existing contract.

3. The appeal outcome must be determined objectively from the evidence. The Tribunal’s findings showed that Mrs Salmon’s appeal had succeeded: her dismissal was considered unsafe, in contrast with the dismissal of another employee whose appeal failed. The expressions used did not make the result tentative.

4. Communication of the successful appeal outcome is not a precondition to revival. Requiring communication would permit an employer to avoid the legal consequences of an authorised decision by withholding the result. Nevertheless, a contractual right to an appeal necessarily includes a right to be told its outcome, and failure to communicate may amount to a repudiatory breach.

5. The proposed argument that Danshell lacked authority to determine the appeals was not admitted on appeal. It had not been raised below and would have required further evidence. New points should be permitted only in exceptional circumstances.

6. Because the contract revived, Mrs Salmon was employed immediately before the transfer and her employment transferred to Danshell under Regulation 4(3) of Transfer of Undertakings (Protection of Employment) Regulations 2006.

• Employment Appeal Tribunal: Allowed the appeal and substituted a decision that Mrs Salmon succeeded against Danshell. The claim against Castlebeck was discharged.
• Employment Tribunal, Leicester: Upheld the claims against Castlebeck but rejected the claims against Danshell, holding that Danshell had never been the employer.