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Does TUPE Give a Right to Have Appeals Transferred?

The general principle with TUPE is that if an employee is employed at the date of the transfer all his rights will transfer and he will continue to be employed by the transferee. If the employee is dismissed before the transfer for a reason related to the transfer the dismissal will be unfair. But what about a situation where the employee was dismissed before the transfer, but not for a reason related to it and the employee exercises his decision to appeal against the decision. What then?

Some years ago, the Employment Appeal Tribunal considered the situation. In G4S Justice Services (UK) Limited v Anstey [2006] an employee had been dismissed before the transfer took effect. The appeal against dismissal had been successful. In that case the court found that the employee would be protected by TUPE and would be transferred to the transferee on the basis that the original dismissal had been overturned.

But each case turns on its own facts. In the recent decision in Bangura v Southern Cross Healthcare, Ms Bangura worked in a care home owned by Southern Cross Healthcare Group plc. She was dismissed summarily for gross misconduct about six weeks before the care home was transferred to Four Seasons Healthcare. At the time of transfer she had an appeal pending against her dismissal, but it had not by then (or at any time subsequently) been heard by Southern Cross.

The case came before the EAT, which distinguished the two situations. In the G4S case the appeal had been successful and the dismissal overturned so TUPE applied. But in Ms Bangura’s case, the appeal had not been heard and in the absence of that she remained dismissed. As the reason was unrelated to the TUPE transfer, she could not enjoy any protection from under the TUPE regulations.

In the absence of a successful appeal, the usual principle applies, which is that a summary dismissal takes effect immediately and ends the employment at that time. As the dismissal had nothing to do with the transfer, Ms Bangura was neither employed nor deemed to be employed in the undertaking immediately before its transfer.

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