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When TUPE transfers become personal it can lead to Tribunal

View profile for Susan Mayall
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In a 'TUPE transfer', can a dismissal for purely 'personal' reasons, e.g. arising from a poor working relationship with a colleague, prevent a dismissal from being automatically unfair for being related to a transfer?

No said a recent Court of Appeal case Hare Wines v Kaur.

The Claimant and a colleague had long-standing difficulties working with each other. That colleague was to become a director of a company that was taking over the wine wholesaler that employed the Claimant in a TUPE transfer. Before the transfer, the outgoing employer dismissed the Claimant. The tribunal held that the dismissal was for a reason related to the transfer and so automatically unfair.

The tribunal found that the Claimant was dismissed because the transferee employer did not want her, so it did not wish the Claimant’s employment to transfer to it, therefore the reason for dismissal was the transfer. The Court noted that dismissals for economic, technical or organisational ‘ETO’ reasons connected with transfers can be fair, but the law does not recognise any category of ‘personal’ reason for dismissal as stopping a transfer-related dismissal from being automatically unfair.

“It would not be right to dismiss someone for personal reasons and for the simple matter that you do not ‘get on’ and this case exemplifies that,” said employment solicitor Susan Mayall.  “No matter how small or big your business the TUPE regulations apply - so it’s the same for a large business with many thousand employees or of a very small one such as a shop, pub or garage and they apply equally to the public or private sector.”

TUPE is an acronym for ’Transfer of Undertakings (Protection of Employment) Regulations and staff employed by the previous employer when the undertaking changes hands automatically become employees of the new employer on the same terms and conditions. It is as if their contracts of employment had originally been made with the new employer and continuity of employment is preserved, as are their terms and conditions of employment under their contracts of employment.

“We have acted for group TUPE transfers, as well as individual cases and can advise on the correct procedures to hopefully avoid cases like this one and prevent wasted time in the Tribunal,” said Susan.

For advice on your employment rights and contracts of employment please call Susan or Victoria on 0161 785 3500

 

 

 

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers LLP or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.