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TUPE and the Vanishing Dismissal

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The EAT (HHJ Peter Clark sitting alone) has held that TUPE 1981 operates so that, when employees are dismissed for misconduct before a TUPE transfer, but are reinstated after the date of transfer by the transferor, the dismissal 'vanishes' and the employees are deemed to have been transferred under TUPE.

In other words, despite having been dismissed at the date of the transfer, they are deemed (if the appeal is successful) to have been employed "immediately before" the transfer.

In reaching that conclusion, the EAT relied on previous decisions of the EAT and Court of Appeal where a dismissal was held to have 'vanished' following a successful appeal, for example for the purpose of deciding whether an employee had continuity of employment for claiming unfair dismissal.

G4S Justice Services v Anstey & Simpson