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12 March 2013
Employment Appeal Tribunal (EAT)
On a TUPE transfer all those employed in the part transferred immediately before the transfer (and those who would have been employed if they had not been dismissed because of the transfer) transfer across to the new owner of the business.
This case establishes that an employee who has been dismissed for misconduct before the transfer does not transfer across, even if the dismissal is the subject of an appeal.
The claimant in this case relied on an earlier case, G4S Justice Services (UK) Limited v Anstey, which had held that, where an appeal after a transfer against a dismissal before the transfer succeeds, the employee is treated as if they had not been dismissed and therefore did transfer. But that did not apply in this case because the appeal failed.
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