TUPE

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Salmon v (1) Castlebeck Care (Teesdale) Ltd EAT – 21 January 2015

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This case is concerned with what happens when an employee is dismissed before the transfer but a successful appeal is heard after the transfer, with the complicating features being that the transferee heard the appeal and did not inform the employee that she had been successful.

As matter of logic (and indeed law (see G4S v Anstey)) one might expect that if a successful appeal is heard, the contract is revived as from the date of dismissal and the employee transfers to the transferee as she would have done had she not been dismissed.  Reassuringly that was the outcome of this appeal after the complicating features had been disposed of.

The Facts

Three employees of the transferor, CCT, were dismissed on 10 July 2013 for gross misconduct.  The transfer to DHC occurred on the 4 September 2013.   One employee’s appeal was heard before the transfer and the appeals of two others were heard after the transfer.  The decision in the case of the appeal heard before the transfer was not announced because it was decided that the decision in relation to all three employees would be announced together.  The managers who heard the appeals had transferred from CCT to DHC as would the employees had they not been dismissed.   One of the employees had their appeal dismissed.  In the case of two others, Mrs Snape and Mrs Salmon, their dismissals were deemed to be unsafe by the managers who heard the appeals.  Neither Mrs Snape or Mrs Salmon were told of the outcome of their appeals but DHC arranged for them to meet an employment consultant who was acting, in relation to employment matters, on behalf of CCT who were then in administration for the purposes of agreeing settlement agreements.  The meeting did not take place.   Claims were then brought for unfair dismissal against CCT and DHC.

The ET Decision

The EJ held that that the claim against CCT succeeded but that against DHC failed for essentially two reasons:  (i)  There had been no decision to reinstate either Mrs Salmon or Mrs Snape following their appeal (the only decision being that the dismissals were unsafe) and therefore they had not in fact been successful in their appeal.  (ii) No decision to reinstate had been notified to either Mrs Salmon or Mrs Snape.    (Succeeding against CCT was because of its insolvency significantly less advantageous that succeeding against DHC.  Mrs salmon appealed.)

The EAT Decision

The EAT (Langstaff P) started by restating the following:  (i)  The effect of a successful appeal is to revive retrospectively the contract of employment (Roberts v West Coast Trains Ltd (2004).  (ii)  A successful appeal does not require a separate decision on reinstatement.  Reinstatement is implicit in, and follows, a successful appeal automatically (McMaster v Antrim BC (2010).

The EAT then held:

(i)  The disciplinary appeals of Mrs Salmon and Mrs Snape had plainly succeeded – that could be gauged by the clear rejection of the appeal in the case of the third employee.

(ii)  It was unnecessary for the employee to be informed of that their appeal had succeeded in order to be reinstated because the contract revived automatically on the decision that appeal succeeded.

(ii)  Following G4S v Anstey the effect was that the Mrs Salmon’s employment was revived as from the date of dismissal and it then transferred to DHC and her claim should have succeeded against it and not CCT.

Link to Judgment

 

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