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TUPE and outstanding disciplinary appeals

No industry likes the chaos and anarchy the word TUPE brings. Most employers are aware that employees from OldCo transfer to NewCo on the same terms and conditions, however does this also mean that an employee pending an appeal from dismissal also transfers to NewCo?

The Employment Appeal Tribunal (“EAT”) recently dealt with this interesting issue in Bangura v Southern Cross Healthcare.

Here the relevant employee worked in a care home operated by Southern Cross Healthcare where she was dismissed for gross misconduct around six weeks before the care home transferred to Four Seasons Healthcare. At the time of the transfer Ms Bangura had an appeal pending against her dismissal though the result was as yet underdetermined.

The original Employment Tribunal (“ET”) found that the TUPE Regulations did not transfer liability to Four Seasons as Ms Bangura was not employed by Southern Cross prior to the transfer, which is a key requirement of TUPE and enshrined in Regulation 4(3).

Ms Bangura appealed on the grounds that the ET decision was inconsistent with the verdict in the earlier EAT case of G4S Justice Services (UK) Limited v Anstey (2006). In this previous case an employee did transfer over in similar circumstances, but after their appeal against dismissal had been successful. This was on the basis that the original dismissal (after the successful appeal) had been negated meaning that the employee was employed for the purposes of Regulation 4(3) at the time of the transfer.

However with Ms Bangura’s matter the EAT considered that her current plight was distinguishable from that of the employee in the G4S case. The reason for this was that she had not had a successful appeal and so the normal principle relating to dismissals applied, specifically that a summary dismissal takes effect immediately and terminates the employment at that time.

Given that Ms Bangura was dismissed for misconduct and not any reason connected with the transfer, she was therefore not employed or deemed to be employed immediately before the transfer occurred.

Conclusion

As you may agree, the above is tricky stuff, but then such is the nature of TUPE related issues as they stand at present. The preventative solution for employers to avoid situations such as Ms Bangura’s, the legal costs of defending which will have run into the tens of thousands, is however really quite simple.

Where TUPE transfers are due to take place, the transferring undertaking is under a duty to disclose employee liability information to the transferee (in this case Southern Cross to Four Seasons Healthcare). While taking stock of such information it would be wise practice to resolve where possible any outstanding disciplinary matters, prior to the transfer taking place.

With Ms Bangura this would have resolved the issue in that her appeal outcome would have been delivered, either by her being reinstated and transferring with her colleagues, or alternatively, the original dismissal outcome would stand and she would not have the recourse of invoking the TUPE Regulations as she tried to do above.

Either way a great deal of time and cost could have been saved by all involved, were this lady’s fate decided prior to the transfer going ahead.  

If you need advice in relation to TUPE please contact a member of our team on 01133 50 40 30 or at hello@scesolicitors.co.uk for a free initial consultation.


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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