Circumstances in which an employee with a pending appeal against dismissal transfers under TUPE
On the facts of the case, the EAT ruled that an employee who had a pending appeal against her dismissal did not transfer under TUPE.
The Claimant worked in a care home owned by Southern Cross. She was summarily dismissed for misconduct and appealed. However, before her appeal was heard the care home was transferred by Southern Cross to a new company under TUPE.
An employment tribunal ruled that TUPE did not transfer liability for the Claimant’ s dismissal to the new owner because she was not in Southern Cross’s employment immediately before the transfer, as is required by TUPE.
The Claimant appealed, arguing that the tribunal’s decision was inconsistent with an earlier decision of the EAT in which an employee in a similar situation transferred to the new employer under TUPE on the basis that her dismissal was overturned by virtue of a successful appeal determined after the transfer.
However, the EAT held that the Claimant could not rely on the earlier ruling because in the previous case the dismissed employee’s appeal had been successful and the dismissal negated. In the absence of a successful appeal, the normal principle is that a summary dismissal takes effect immediately and terminates the employment at that time. As the Claimant’s dismissal had nothing to do with the transfer, the Claimant was not employed or deemed to be employed by Southern Cross immediately before the transfer of the care home so as to transfer liability for her dismissal to the new owner.
In this case, the significant point was that the Claimant’s appeal had not been determined at the time the care home transferred to the new owner – or at any time since. It was apparently on this basis that the EAT distinguished the Claimant’s case from that of the earlier EAT decision in which the employee in a similar situation transferred to the new employer by virtue of a successful appeal against dismissal heard after the transfer.
What was crucial to the reasoning in the previous case was that the employer in that case had eventually heard the employee’s appeal and indeed found in her favour so that the dismissal was overturned. If an appeal against dismissal is successful (even after transfer in a TUPE situation), the dismissal is, as a matter of law, overturned and the employee is reinstated.
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