An interesting decision on the effect of TUPE upon the rare beast of an interim order for continuation of employment.
Under s163 of the TULR(C)A 1992, an employment tribunal can make an interim order for continuation of employment if, in a trade-union dismissal case, the IT1 is lodged within seven days of dismissal and the tribunal considers the case is 'likely' to succeed. The effect of the interim order for continuation of employment is that the employee continues to receive pay and benefits until the full hearing, but is not required to work. Even if s/he ultimately fails at the full merits hearing, s/he gets to keep the money. A similar provision exists in whistleblowing dismissal cases.
In Dowling v Berkely Logistics Ltd., the EAT (Burton P.) held that if a TUPE transfer occurs after an interim order for continuation of employment is made, the employment does not transfer to the transferee. The reasoning is, essentially, that the continuation of employment is a statutory fiction and the individual is not, in reality, an employee immediately before the transfer.