What is the impact of a successful appeal by an employee against dismissal? The answer is well-established - it revives retrospectively the contract of employment, so the employee continues to be employed as if they had never been dismissed.
But what is the position when the person or people hearing the appeal does/do not expressly order reinstatement? Does the contract still revive? Yes. To quote the President of the EAT in a recent judgement, “Where a decision is to dismiss…any success on appeal means that the decision is one in which dismissal does not take effect, though some lesser sanction might. I see no reason in principle why an outcome on appeal against dismissal which is favourable to an employee should not, and every reason in principle why it should, therefore automatically revive the contract”.
And is it necessary to communicate the outcome of the successful appeal to the employee in order for that automatic revival of the employee’s contract to take effect? No. Again according to the EAT President “Where...a decision has been taken to allow the appeal, it seems to me that it is a decision which…has the effect of reviving the contract, subject only to there being some contractual term or provision which prevents it [my emphasis]….[It] is not necessary, in order for a successful appeal to have that effect, that there should be a communication of the result of the appeal.”
The logic behind that latter decision is that if it were the case that the revival of the contract depended on effective communication, employers would have the option of preventing revival by not communicating the decision to the appellant employee. The wording underlined above raises an interesting question which went unanswered, namely what the position would have been had there been a contractual term which limited the impact of an internal appeal against dismissal. Employers should perhaps consider including such a term in their contracts of employment.
And if the employer fails to communicate an appeal decision? Aside from the employee’s contract reviving automatically, the EAT President went on to note that in the case of non-communication of the result of an appeal “It is certainly open to the employee to complain...that there has in this respect been a repudiatory breach by the employer”.
These comments by The Honourable Mr Justice Langstaff were made in his recent judgement in the case of Salmon v (1) Castlebeck Care (Teesdale) Limited (in administration) and (2) Danshell Healthcare Limited and others. See Salmon v (1) Castlebeck Care (Teesdale) Ltd (In Administration) (2) Danshell Healthcare Ltd and others UKEAT/0304/14, 10 December 2014. In that case, Mrs Salmon was dismissed on 10 July 2013 by Castlebeck Care prior to a transfer to Danshell Healthcare on 4 September. Her appeal against dismissal was not heard until 17 September, and whilst her dismissal was deemed “unsafe” by the Director who heard it, no express decision was taken to revive her contract and Mrs Salmon was not told about the outcome of her appeal. Instead, a meeting was set up to try and agree a settlement agreement, but the meeting was cancelled and never went ahead. The EAT decision meant that she had been an employee just before the transfer and that her employment had therefore transferred to Danshell Healthcare.