Ms Salmon and two other employees had been dismissed by Castlebeck Care. The business was subject to a TUPE transfer shortly before her appeal had been heard. Her dismissal was deemed unsafe but this was never communicated to her and the respondent's representatives did not complete a settlement agreement. Did there need to be communication of the reinstatement to activate the contract?
No, according to the EAT, with reference to an employment case heard by the NI Court of Appeal:
"The argument that communication in these circumstances is necessary is that an employer whose authorised officers have taken a decision open to them to allow an appeal may nonetheless not face any of the consequences of that decision. If it chooses simply not to tell the employee that that has happened then, so far as it is concerned, the employee simply remains dismissed and has no rights other than to complain about that dismissal. This is so plainly open to abuse and so plainly in breach of the principle set out in McMaster [McMaster v Antrim Borough Council [2010] NICA 45; [2011] IRLR 235] at paragraph 11, which I entirely accept, that a court would think long and hard before concluding that it actually represented the law. There is no need, it seems to me, for the law to demand not just a decision, objectively established, to allow an appeal, but also that it must be communicated in some effective way to the Claimant."
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