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26 June 2013 0 Comments
Posted in Employment, Opinion

TUPE and prior dismissal

Author headshot image Posted by , Partner

In Bangura v Southern Cross Healthcare, the EAT has held that an employee who was summarily dismissed before the transfer took place but had an appeal against the dismissal outstanding at the time of transfer, did not transfer under TUPE.

The individual was summarily dismissed for misconduct about 6 weeks before the care home transferred to Four Seasons Health Care. At the time of the transfer her appeal against the dismissal was pending but had not been heard. The Tribunal held that TUPE did not apply because the individual was not employed with the transferor immediately before the transfer.

The employee appealed on the basis of inconsistency between this decision and the decision of the EAT in G4S Justice Services (UK) Limited v Anstey.  This case involved an employee in a similar situation but whose appeal against dismissal was successful. Consequently she was deemed to transfer under TUPE because the successful appeal had the effect of reinstating her so that, had she not been dismissed in the first place, she would have transferred under TUPE.

The EAT distinguished that case from the current case on the basis that the appeal in Bangura was pending and that the summary dismissal took place immediately after the decision was taken so the employee was not employed at the time of the transfer. Furthermore her dismissal was completely unconnected to the transfer and so there was no question of her having been dismissed because of it.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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