In a recent case decided by the EAT, it was held that where an employee successfully appeals against dismissal under an appeal procedure, the contract of employment is revived automatically, without need for the employer to make a specific decision that the employee should be reinstated. The EAT also decided that despite the employment failing to communicate the decision to the employee, the revival still took place.
The Claimant ("C") was employed by Castle Care Limited until her dismissal for gross misconduct on 10 July 2013. C lodged an appeal against this decision.
On 4 September, CC Ltd transferred to DH Ltd under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"). The appeal was heard on 17 September by the HR director, whose employment had also transferred to DH Ltd. The HR director's decision was that it was 'unsafe' but he made no express determination for C's reinstatement or for her employment contract to be revived. C was not informed that her appeal had been successful.
DH Ltd instructed representatives to enter into a settlement agreement with C, but when C later lodged a claim against DH Ltd in respect of her dismissal their argument was that her employment had not transferred to them since she was not employed in the transferring business before the transfer (as required by TUPE). The ET accepted this argument and dismissed the claim. The authority for this decision was G4S Justice Services (UK) Ltd v Anstey (Brief 806) ("Anstey") in which the EAT held that employees awaiting the outcome of appeal hearings at the date of the transfer, who eventually succeed in their appeals, did transfer to the transferee. The ET considered that in order for Anstey to apply to this case, there is to be a clear decision on the employer's part not to just allow the appeal but to also reinstate the employee accordingly. The ET also put weight on the fact that the decision was not communicated to C.
C appealed the decision and the EAT allowed her appeal. Mr Justice Langstaff decided that Anstey did not require a separate decision on reinstatement in order for an employment contract to be revived. Instead the EAT noted that the effect of C's appeal was decided by the earlier Court of Appeal decision in Roberts v West Coast Trains Ltd (Brief 767) to which the ET had referred. The EAT decided that the ET had erred in C's case in that they stated there should be a separate decision to reinstate. In any event, there is no reason why it would be necessary for there to be an express revival or reinstatement of an employment contract since it would have been implied by the appeal, unless otherwise stated, that the appeal panel has the right to reverse or vary the decision.
When a decision has been taken to allow an appeal, the decision has the effect of reviving an employment contract subject only to there being some contractual term or provision which prevents it. It is not necessary to have communication of the result itself. Accordingly, on the facts of C's case, her contract was revived by the successful appeal of her dismissal. She was therefore employed immediately prior to the transfer and so was entitled to bring her claim against DH Ltd.