Pending appeal against dismissal did not mean former employee transferred under TUPE, says EAT

Out-Law News | 17 May 2013 | 2:05 pm | 2 min. read

A former employee who was awaiting an appeal against her dismissal was not "employed" for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE), the Employment Appeal Tribunal (EAT) has ruled.

In his judgment, Mr Justice Singh said that the former employee, Ms Bangura, was not employed by Southern Cross Healthcare Group at the time the care home in which she had worked transferred to Four Seasons Healthcare.

Although she had an appeal pending against her dismissal, which had taken place about six weeks before the transfer, she was not employed by Southern Care immediately before the transfer as required by TUPE, he said. This meant that her employment did not automatically transfer to the new owners of the business, he said.

Bangura had appealed from the employment tribunal, arguing that the judge's decision was incompatible with a previous EAT decision. However, Mr Justice Singh said that the two cases were different as, in the previous case, the employee had successfully overturned the dismissal. In Bangura's case, her appeal was still pending at the time of the transfer and had not been heard since, he said.

"In the absence of such a successful appeal, the normal principle applies, namely that a summary dismissal takes effect immediately and terminates the employment at that time," he said in his judgment.

"If an appeal is successful it will retrospectively have the effect that an employee is no longer to be treated as dismissed. However, if the appeal is not successful then the dismissal takes effect on the original date. The fundamental point is that when a notice of immediate dismissal is given that dismissal takes immediate effect," he said.

TUPE protects the rights of employees when their company is taken over by a new owner or the work that they provide is outsourced, brought back in house or there is a change of service provider. In addition, any dismissal which takes place as a result of the transfer is treated as automatically unfair. In this case, Bangura was dismissed due to misconduct. Her dismissal had "nothing to do with the transfer", Mr Justice Singh said.

"So far as things have stood to date, the effective date of termination in the present case was 12 August 2011, well before the date of the transfer between the two [companies]," he said.

Given the circumstances, it was the responsibility of Bangura's previous employer, Southern Cross Healthcare, to hear and determine any appeal, he said.

"If there has been or [Bangura] considers that there is any breach of [the obligation to hear her appeal] that, as it seems to me, is a matter between [Bangura] and [Southern Cross Healthcare]," he said.

"It does not have the effect of bringing into play the TUPE Regulations and somehow deeming [Four Seasons Healthcare] to have become [Bangura's] employer, still less, as it seems to me, does it impose an obligation on [Four Seasons Healthcare] to hear, conduct and determine any such appeal. It was not [Bangura's] employer on any view at the time of the initial dismissal," he said.

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