Employment Law - Dismissal Suspended

The Employment Appeal Tribunal has recently decided that a dismissal is not to be treated (for TUPE purposes) as a dismissal if it is followed by re-engagement by a transferee of the business concerned. If an employee is dismissed before a TUPE transfer, but is reinstated after the date of transfer, the dismissal is void - the employee is deemed to have been effectively transferred under TUPE.

The claimants in this case were employed by GSL as Detainee Custody Officers. Following allegations made in a BBC documentary, the Claimants were disciplined and summarily dismissed for alleged gross misconduct. Both lodged internal appeals against their dismissal but, before the appeals were heard, the contract under which both men were working was transferred to G4S.

At a pre-transfer meeting, the issue was raised as to what would happen if these employees successfully appealed against dismissal, but no conclusion was reached.
Following the transfer, there were arguments as to who should hear the internal appeals. Eventually, GSL did so. At the internal appeals, the dismissals were overturned – reinstatement should have followed. However, GSL now had no work for them. G4S contended that, as the claimants were no longer employed by GSL, immediately before the transfer, their employment had not transferred to G4S under TUPE.

In dealing with unfair dismissal claims brought against both GSL and G4S, the Employment Tribunal had to consider who the relevant employer was. It decided that there had, in each case, been a valid TUPE transfer and that G4S (and not GSL) was therefore under a duty to reinstate, once a finding of unfair dismissal was made. The dismissal by GSL was effectively suspended, pending the outcome of the appeal.

This case underlines the need for anyone involved in the transfer of a business (or part of a business) to obtain full disclosure about employees who may have been dismissed, and to plan for a situation where an appeal against dismissal is ultimately successful.