The dismissal of an employee is automatically unfair if the sole or principal reason for the dismissal is the TUPE transfer.
Dismissal before a TUPE transfer
Employees have certain rights including protection from dismissal on the transfer of an undertaking, such as on a business sale or the outsourcing or insourcing of services. Such transfers are known as ‘TUPE transfers’ and are governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The dismissal of an employee is automatically unfair if the sole or principal reason for the dismissal is the TUPE transfer. If the employer can show that the dismissal was unrelated to the transfer, it will not be automatically unfair. A recent case has shown that if an employer takes the opportunity of a TUPE transfer to dismiss an employee with a conduct or performance issue, this can still be automatically unfair, as it is motivated by the transfer.
Ms Kaur was a cashier working for H&W Wholesale. She was dismissed two days before the employees and stock were transferred to Hare Wines under the TUPE Regulations. She had a strained working relationship with a colleague. The problems had been going on for a while and the colleague would become her manager after the transfer. Her employer did nothing about the relationship difficulties until just before the TUPE transfer, when it decided to resolve them by dismissing Ms Kaur. The Employment Appeal Tribunal ruled that the dismissal was automatically unfair, even although it was for reasons personal to Ms Kaur. It was still motivated by the sale to Hare Wines, making the TUPE transfer the principal reason for the dismissal.
