The Employment Appeal Tribunal (“EAT”) has decided in Bangura v Southern Cross Healthcare that an employee did not transfer under the TUPE Regulations (“the Regulations”) when, at the time of transfer, an appeal against her prior dismissal was pending.
Kate Fretten, Employment Partner, says "The Claimant worked in a care home owned by the Respondent. She was summarily dismissed for misconduct about six weeks before the care home was transferring to another owner. At the time of transfer she had an appeal pending against her dismissal, but it had not by then been determined by the Respondent."
An employment tribunal held that the Regulations did not transfer liability to the new owner since the employee was not employed immediately before the transfer, as is required by the Regulations. The Claimant appealed on the basis that this decision seemed inconsistent with an earlier one, in which an employee in a similar situation transferred to the new owner under TUPE on the basis that the original dismissal, by virtue of a successful appeal, had been overturned.
However, the EAT distinguished this case from the earlier one. In that case the appeal had been successful and the dismissal was null and void. In the absence of a successful appeal, the normal principle applies, namely that a summary dismissal takes effect immediately and terminates the employment at that time. As the dismissal had nothing to do with the transfer, the employee was therefore not employed or deemed to be employed immediately before the transfer.
Get in touch if you need more information on this topic. You should find the other articles in June's employment newsletter of interest.
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