12 June 2013

TUPE and Outstanding Disciplinary Appeals

The printing industry like many industries does not like the chaos and anarchy that 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 recently dealt with this interesting issue in Bangura v Southern Cross Healthcare.

Here Ms Bangura worked in a care home operated by Southern Cross Healthcare. 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.

So Ms Bangura wasn't actually still employed by Southern Cross prior to the transfer. She therefore fell foul of Reg 4(3) of TUPE with the result that she did not transfer to Four Seasons. Ms Bangura's reliance on a previous case in which an employee who had been reinstated on appeal was not valid, since in that case the original dismissal was void by reason of the successful appeal.

Therefore, unfortunately for Ms Bangura, the normal principles 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

In friendly transfers, proper due diligence would have brought this problem to light and may have been sorted between the parties prior to the transfer. If, as seems likely here, there was a change of sub-contractors, that is more difficult to arrange. Ms Bangura would still have had an Unfair Dismissal claim against OldCo, but the issue which went to the Appeal Tribunal and no doubt costs thousands more in legal fees, could have been avoided if both OldCo and NewCo had got their house in order prior to any transfer