TUPE dismissal unfair

The Employment Appeal Tribunal (EAT) has upheld a decision that an employee who was dismissed two days before a TUPE transfer was unfairly dismissed – because the main reason for the dismissal was the transfer itself.

The employee was employed by a business that encountered financial difficulties and did a deal with another business to purchase its stock and take on any employees on the basis that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied to the transaction.

All the employees except this one employee transferred under TUPE. She was dismissed two days before the transaction occurred. The employee brought proceedings before an employment tribunal (ET) claiming unfair dismissal, redundancy pay and notice. She insisted the principal reason for her dismissal was the transfer. The transferring company tried to argue that the employee had expressed dissatisfaction against the transfer and that they had taken this as her objecting to and her employment was terminated for that reason.

But the judge ruled in favour of the employee, concluding that she would have transferred but for her dismissal. As such, it concluded the reason for the dismissal was the transfer. The EAT dismissed the appeal and upheld the ET’s ruling.

Employers must be aware that the TUPE regulations give an automatic right for employees to transfer. It is not open for the new employer to pick and choose which employees they want to take.

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