In Bangura v Southern Cross Healthcare, the EAT considered another area of uncertainty connected with the TUPE regulations. Unfortunately, the EAT's decision does nothing to help the purchaser of a business in trying to assess what liabilities they assume.
If an employee is dismissed and appeals the decision, the general law is that the dismissal is effective unless or until the appeal is successful, in which case the dismissal simply ‘disappears’ and the employee is to be treated as if it had never happened.
This case concerned an employee who was dismissed for misconduct prior to a TUPE transfer with the resulting appeal against dismissal still pending at the date of the transfer. The EAT confirmed that the normal rule still applies. So, if the appeal is unsuccessful, the dismissal stands. However, if the appeal is successful, the employee is treated as if they were never dismissed and their contract and all the legal obligations thereunder, pass automatically to the transferee.
Point to note -
- Responsibility for dealing with any such outstanding appeal remains with the transferor employer, therefore the transferee will need to be sure that they ask for the correct ‘employee liability information’ pre-transfer (as TUPE entitles them to do) so that they can be aware of any potential obligation that they may be taking on.