To be protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), an employee has to be employed immediately before the transfer. In Bangura v Southern Cross Healthcare Group and Four Seasons Healthcare, the Employment Appeal Tribunal (EAT) said that an employee summarily dismissed six weeks before the transfer and whose appeal had not been heard by the transfer date was not an employee.
Ms Bangura worked for Southern Cross Healthcare from August 2007 to August 2011, when she was summarily dismissed for gross misconduct. On 30 September (before her appeal against dismissal had been heard), the care home where she worked transferred under TUPE to the Four Seasons Healthcare Group.
On 7 December 2011 she lodged claims for unfair dismissal and race discrimination.She then asked the tribunal on 23 December to add the Four Seasons Healthcare Group as an additional respondent (or defendant) to her complaints.
The tribunal judge refused her application on the ground that TUPE did not apply as Ms Bangura was not an employee of Southern Cross Healthcare immediately before the date on which the transfer took effect, as required under regulation 4(3) and there was no suggestion that the dismissal was because of the pending transfer.
Relying on the EAT decision in G4S Justice Services (UK) Limited v Anstey Ms Bangura appealed. She argued that, as her appeal against dismissal had not been heard by the time of the transfer, she was still employed by Southern Cross. As she had effectively been suspended by them, she had transferred across to Four Seasons.
Regulation 4(3) states that to be deemed an employee, the person has to be someone “employed immediately before the transfer or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1)”.
Regulation 7(1) states that “where either before or after a relevant transfer any employee of the transferor or transferee is dismissed, that employee shall be treated ... as unfairly dismissed if the sole or principle reason for his dismissal is (a) the transfer itself or; (b) a reason connected with the transfer but is not an economic, technical or organisational reason entailing changes in the workforce”.
The EAT agreed with the tribunal. Although the judge in the G4S case had found in favour of the claimants, the crucial difference was that their employer had eventually heard their appeals and overturned their dismissals.
The EAT said that the obligation to hear and decide her appeal rested with Southern Cross and had nothing to do with Four Seasons. It was not and never had been her employer and had no knowledge of the facts behind the decision to dismiss Ms Bangura summarily on grounds of misconduct. However, if her appeal was ultimately successful, it would have retrospective effect and she would no longer be treated as dismissed. Conversely, if her appeal was not successful then the dismissal date remained the same.
As things stood, Ms Bangura’s appeal had not been heard by Southern Cross by the time the transfer took place. Her effective date of termination therefore remained 12 August 2011, well before the date of the transfer between the two companies.
“The fundamental point” said the EAT “is that when a notice of immediate dismissal is given that dismissal takes immediate effect”.
This case demonstrates that when an employee is dismissed before a TUPE transfer takes place, in the absence of a successful appeal, the principles as stated in Sainsbury v Savage apply and the dismissal has the effect of immediately terminating the contract of employment at that time. This means that the employee does not transfer to the transferee. If the appeal against dismissal is successful then the decision in G4S means that the employee is reinstated with the transferee.