Dismissals and TUPE transfers
G4S Justice Services (UK) Limited v Anstey and others,
30 March 2006, EAT website
Mr Anstey was assigned to a specific contract until his summary dismissal for alleged misconduct, against which he appealed as his contract allowed. Prior to the appeal hearing, however, his employer lost the contract to another company. Neither the old nor prospective ‘new’ employer could agree on who should then hear his appeal, but finally, his old employer agreed to do so.
Anstey’s appeal was upheld, but by that time, he was unable to be re-instated by his old employer, since it no longer operated the contract to which he had been assigned, and the new company refused to engage him. Anstey brought an unfair dismissal claim against both companies.
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) ensure that in the event of a business sale, employees engaged “immediately before the transfer” are protected; their contracts of employment transfer to the acquiring business.
These regulations also cover employees who would have transferred employment had they not been unfairly dismissed pre-transfer. In this case, the acquiring business argued that Anstey was dismissed and, therefore, was not an employee at the time of transfer.
The tribunal, however, disagreed and decided that, although he was technically ‘dismissed’ at the time of transfer, his subsequent successful appeal against dismissal meant that the dismissal was set aside and Anstey continued in employment. This in turn meant that he transferred employment under TUPE.
The EAT considered whether an employee, dismissed prior to transfer but whose appeal is yet to be heard, is in fact ’employed’ in the transferred business for the purposes of TUPE. The EAT found Anstey’s successful appeal expunged his original dismissal, and he should have been treated as having been employed up until the transfer date and accordingly transferred. It made no difference that his appeal was not heard before the transfer date.
Since Anstey’s right of appeal existed in his contract of employment, his employment was found to be preserved until that right had been executed, even though, in the meantime, the contract to which he was assigned was lost.
The principle here appears to have been that, had the appeal been heard before the transfer date, Anstey would have been employed immediately before the transfer. It would be unreasonable to penalise him because this did not happen.