Bangura v Southern Cross Healthcare Group Plc & Anor (Transfer of Undertakings : Transfer)

A summary dismissal normally terminates employment immediately. A pending internal appeal does not preserve employment for transfer purposes. If the appeal succeeds and reinstatement is directed, the dismissal retrospectively disappears and the employment may be treated as continuing at the transfer date.

Under Transfer of Undertakings (Protection of Employment) Regulations 2006, a dismissed employee does not transfer where the dismissal pre-dated the transfer and was unconnected with it. The transferor remains responsible for determining an outstanding appeal. Employee-liability information provisions regulate the transferor–transferee relationship and do not give the employee a basis for imposing that responsibility on the transferee.

The claimant was summarily dismissed for alleged gross misconduct on 12 August 2011. She appealed internally, but the appeal had not been determined when the care home at which she worked transferred to the second respondent on 30 September 2011.

She brought claims for unfair dismissal and race discrimination, and sought to join the transferee. The Employment Judge refused, and on review confirmed, that she was not employed immediately before the transfer and that any liability had not transferred. The claimant appealed, relying principally on G4S Justice Services (UK) Ltd v Anstey & Ors [2006] IRLR 588.

The central issue was whether an unresolved appeal against a pre-transfer summary dismissal meant that the claimant remained employed for the purposes of TUPE.

1. Appeal dismissed. The Employment Judge was entitled to conclude that the claimant was not employed immediately before the relevant transfer. Her summary dismissal took immediate effect on 12 August 2011, before the transfer.

2. The Tribunal distinguished G4S Justice Services (UK) Ltd v Anstey & Ors [2006] IRLR 588. In that case the transferor ultimately upheld the employees’ appeals, revoked their dismissals and directed reinstatement. The resulting dismissal retrospectively vanished. Here, the claimant’s appeal had not been determined and no reinstatement had been directed.

3. The applicable domestic-law analysis, derived from Sainsbury v Savage, was that immediate dismissal takes effect when communicated. An appeal may lead to retrospective reinstatement if it succeeds. If it fails, the dismissal remains effective from its original date. A pending appeal alone therefore did not make the claimant an employee at the date of transfer.

4. Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 did not assist because the dismissal was not alleged to have been caused by, or connected with, the transfer. Regulation 4 consequently did not transfer the claimant’s contract or associated liabilities to the transferee.

5. The obligation to hear and determine the outstanding appeal remained with the transferor. Regulations 11 and 12 concerned employee-liability information and supplied a remedy to the transferee against the transferor. They neither transferred the appeal obligation nor made the transferee the claimant’s employer.

6. The result was compatible with article 3 of the Acquired Rights Directive. National law determines whether an employment relationship existed at the transfer date, subject to mandatory protection against dismissal by reason of the transfer.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Judge’s refusal to join the transferee as an additional respondent.

• Employment Tribunal: on 30 January 2012, confirmed on review on 2 March 2012, the Employment Judge held that the claimant was not employed immediately before the TUPE transfer and that liabilities did not pass to the transferee.