Pre-TUPE transfer dismissal where an appeal is pending

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In Bangura v Southern Cross Healthcare Group plc & Four Seasons Healthcare, Ms Bangura was summarily dismissed on grounds of misconduct by Southern Cross Healthcare about six weeks before the care home at which she worked was transferred to Four Seasons Healthcare. Had she been employed at the time of the transfer, her employment would have been transferred to Four Seasons under the TUPE Regulations. At the time of the transfer she had an appeal pending against her dismissal, but it had not by then been determined by Southern Cross (and it was never in fact determined by Southern Cross).

Ms Bangura brought a claim for unfair dismissal in the Employment Tribunal (ET) and sought to join Four Seasons as a respondent to the claim. The ET refused permission to join Four Seasons on the basis that Ms Bangura was not employed by Southern Cross immediately before the transfer and therefore her employment did not transfer to Four Seasons under TUPE and Four Seasons was not her employer (and therefore not a correct respondent to her claim of unfair dismissal)…

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