The Court of Appeal has confirmed by Judgment dated 19 February 2019 that a dismissal by reason or principle reason of a TUPE transfer is automatically unfair. Read on if your employer is changing or has recently changed and you are experiencing difficulties at work.
The case of Hare Wines Ltd v Mrs Kaur [2019] EWCA Civ 216 demonstrates that if an employee’s dismissal is for the sole reason, or principal reason of that employees transfer from one employer to another, it will be automatically unfair.
Mrs Kaur was employed from 2002 as a cashier in a wine business which operated under various entities, most recent being H & W Wholesale Ltd. In April 2014 another entity started to trade – Hare Wines Ltd. Mr Hare (who was also a director in H & W Wholesale Ltd) was the only director of Hare Wines Ltd at that time. However, one of the Claimant’s colleagues, Mr Chatha, was due to become a director of Hare Wines Ltd in due course. It is important to note that Mrs Kaur had a poor working relationship with Mr Chatha; they did not get along at all.
In December 2014, it was agreed that Hare Wines Ltd would take over the business of H & W Wholesale Ltd and as such, the TUPE regulations applied. All employees, aside from Mrs Kaur were transferred in to Hare Wines Ltd. However, Mrs Kaur was dismissed and claimed unfair dismissal on the basis that she was only sacked because Mr Chatha (newly appointed director) did not want to work with her. The Employment Tribunal at first instance held that Mrs Kaur’s dismissal was automatically unfair. However, the decision was appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal dismissed the appeal and a further appeal was submitted to the Court of Appeal.
The Court of Appeal also dismissed the appeal and agreed Mrs Kaur had been automatically unfairly dismissed. The Judgment of Lord Justice Underwood succinctly set out the position “The problems between Ms Kaur and Mr Chatha had been going on for some time, but there was no evidence that until the transfer they were regarded as cause for dismissal….. Ms Kaur’s problems with Mr Chatha, which had been tolerable pre-transfer, would not be tolerable post-transfer. In my view that means …. it was the transfer which was, within the meaning of the regulation, at least the principal reason for Ms Kaur being dismissed”.
Although the law recognises that that a TUPE dismissal can sometimes be fair if the dismissal is for economic, technical or organisational reasons relating to the transfer, a personal dislike by one of the directors will not be sufficient. Therefore, Mrs Kaur succeeded in her claim.
Need Help?
If you are going through a transfer situation call 01522 440512 for a free telephone consultation. Alternatively, for more information about LincsLaw visit our website at www.lincslaw.co.uk. For over fifty years our lawyers have been helping people just like you, with problems just like yours.
Sophie Goodwill
Specialist Employment Law Solicitor
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