TUPE Transfer: employed immediately before the transfer?

In the recent case of Bangura v Southern Cross Healthcare Group Plc the Employment Appeal Tribunal considered the question of whether an employee could be protected by Transfer of Undertakings (Protection of Employment) (TUPE) – a decision that has implications for many ISH providers.

In this case Ms Bangura had been dismissed prior to the transfer, but an appeal against her recent dismissal was outstanding at the time of both the transfer and the Employment Tribunal hearing.

Ms Bangura worked at a care home operated by Southern Cross. She was dismissed by reason of gross misconduct. Ms Bangura appealed this decision.

Around six weeks after her dismissal, Four Seasons Healthcare took over responsibility for the care home and any remaining staff were transferred to it under the TUPE Regulations 2006.

At the time of the transfer, Ms Bangura’s appeal was still outstanding. She therefore argued as part of her unfair dismissal claim that her employment should have transferred under TUPE to Four Seasons Healthcare. She argued that she should have been treated as having effectively being suspended during the period between her dismissal and her pending appeal.

Ms Bangura was relying on the case of G4S Justice Services (UK) Ltd v Anstey & Others (2006), in which two claimants were summarily dismissed for alleged gross misconduct, both lodged internal appeals against the dismissal and their appeals were upheld and their employment re-instated. A TUPE transfer had occurred between their dismissal and their re-instatement and it was held that their employment had effectively transferred to the new undertaking.

However, in this case, at the time of the hearing Ms Bangura’s appeal had yet to be heard and the Employment Appeal Tribunal considered this to be the fundamental distinction; no decision had been made that Ms Bangura should be re-instated.

It was common ground that there was no reason to suppose that the dismissal had anything to do with the transfer, therefore the Employment Appeal Tribunal held that the ordinary analysis that Ms Bangura was not employed immediately before the transfer would apply, and she should therefore not transfer under TUPE.

The key point is therefore that in the absence of a successful appeal, the dismissal is effective when it is implemented and the employee will not be considered to be employed immediately before the transfer and therefore not protected or transferred by reason of TUPE. The handling and potential outcome of any appeal could therefore have significant consequences for both parties in any TUPE transfer situation.