According to an Employment Appeal Tribunal (EAT) decision, the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) do not apply when an employee is awaiting an appeal against their dismissal.
The ruling came in the case of an individual who had been dismissed for misconduct six weeks before the company transferred the employment of its staff to another employer, and whose appeal was still to be heard.
According to the ruling, “when a notice of immediate dismissal is given that dismissal takes immediate effect” and “terminates the employment at that time”. Consequently, the individual was not employed by the company immediately before the transfer and therefore TUPE did not operate to transfer the individual to the new owner of the business.
As a result, the former employee’s appeal against her dismissal needs to be heard by the original company, and this obligation was not transferred to the new owner.
Additionally, while TUPE protects the rights of employees, making it automatically unfair to dismiss someone as a result of the transfer, this did not apply in this case because the reason for dismissal was misconduct, not the transfer of the business.
At Palmers Solicitors, our complete range of dedicated employment law services includes advising on fair dismissal processes and TUPE.