Reinstated workers "were transferred"

Employees dismissed before a business transfer should have been taken on by the new employer when they were reinstated on appeal, the Employment Appeal Tribunal (EAT) has ruled.

Custody officers Mr Anstey and Mr Simpson were employed by security company GSL under a contract to the Home Office. Both brought an appeal after they were disciplined and summarily dismissed for alleged gross misconduct following allegations made in a BBC documentary.

Before their appeals were heard, the contract with GSL was ended and given instead to the firm G4S. This was a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE), meaning that their employment transferred.

G4S refused to hear the appeals, so they were heard instead by GSL, which overturned the decisions to dismiss and said Anstey and Simpson should be reinstated. But GSL had no work for them following the loss of the contract, and G4S refused to reinstate them on the grounds that they were not employed by GSL immediately before the transfer.

The EAT held that, when a dismissal is overturned on appeal, the dismissal effectively “vanishes” and continuity of employment is preserved. The claimants were therefore to be treated as having been employed immediately before the transfer, so their employment had transferred under TUPE.

This was consistent with the purpose of TUPE, the EAT said, which is to safeguard employees’ rights in the event of a transfer.

G4S Justice Services (UK) Ltd v Anstey, Simpson & GSL UK Ltd UKEAT/0698/05