Effect of successful appeal against dismissal
In situations to which TUPE applies, when a business changes hands, the employees of the previous business owner automatically become employees of the new owner.
Protection is extended to anyone who is dismissed prior to the transfer of business for a reason connected with the transfer. Whilst such a dismissal is effective to prevent employment from transferring, the dismissal will be automatically unfair and liability for the unfair dismissal transfers across to the new owner.
But what about someone who is dismissed prior to transfer and successfully appeals against his dismissal?
In that case, the dismissal is expunged and the employee is treated as having been employed at the time of transfer and his employment will transfer to the new owner.
In the next case, the Claimant was dismissed for gross misconduct by the first respondent. She lodged an appeal against dismissal. Meanwhile, the first respondent’s business undertaking transferred to the second respondent under TUPE. The second respondent heard the Claimant’s appeal and decided that the dismissal was unsafe but did not inform the Claimant of its decision or direct that the Claimant should be reinstated; instead, it instructed an employment consultant to negotiate a settlement agreement (although this never actually occurred).
An employment tribunal rejected the Claimant’s claim against the second respondent for unfair dismissal because in the tribunal’s view what was required was a clear decision not just to allow the appeal but to reinstate the Claimant. This was missing in the present case. The judge also thought it relevant that the appeal outcome had not been communicated to the Claimant. In the judge’s view, ‘a decision is not a decision until it is communicated to the employees involved in the appeal process.’
The EAT, allowing the Claimant’s appeal, ruled that once an appeal against dismissal is upheld the contract of employment is automatically revived. There is no need for a separate reinstatement decision or communication of that decision. The situation is not analogous to that in which an employee is notified of a dismissal (in which case communication is necessary for the decision to be effective).
The Claimant was therefore employed at the date of the TUPE transfer and entitled to pursue her claim against the second respondent.
If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to firstname.lastname@example.org
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