TUPE

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Bangura v Southern Cross Healthcare Group plc EAT 12 March 2013

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The issue in this case was whether an employee who is dismissed before the transfer nevertheless transfers if he has an appeal that is outstanding at the date of transfer.

In G4S v Anstey (2006) the employees were dismissed by the transferor before the transfer.  They lodged appeals against dismissals before the transfer.  The transfer took place and the employees did not transfer.  The appeals were successful and the employees were reinstated.  It was held that having been reinstated they were then employed by the transferee. Reinstating the employee following a successful appeal has the effect that there has been no break in his employment and that if there has been a transfer his employment transfers.

By contrast the appeal by the employee in this case had not been heard.  He therefore remained dismissed. As he was dismissed before the transfer for a reason not connected to the transfer his employment did not transfer to the transferee.  G4S was distinguishable as in that case there had been a reinstatement.

An argument that Regs 11 and 12 gave support to the employee’s case (that there was a transfer pending his appeal) was rejected by the EAT.

Link to judgment

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