In the recent case of Hare Wines v (1) Kaur (2) H & W Wholesale the Employment Appeal Tribunal (EAT) held that the dismissal of an employee two days before a TUPE transfer was automatically unfair, even though it was partly due employee’s personal circumstances.
Ms Kaur was a cashier for H & W Wholesale who was dismissed two days before H & W’s stock and employees were transferred under TUPE 2006 to Hare Wines. Ms Kaur’s original tribunal claim for automatic unfair dismissal came about because she had a difficult working relationship with a colleague, Mr Chatha, and she believed that Hare Wines wanted to avoid his having to manage her so dismissed her. Both Hare Wines and H & W Wholesale argued that the reason was, instead, Ms Kaur’s objection to the transfer The tribunal upheld Ms Kaur’s claim, believing that she would have transferred had she not been dismissed and that the transfer was, therefore, the reason for her dismissal.
If an employee is dismissed by either a transferor or a transferee purely on the grounds of the transfer then it is automatically unfair, but a tribunal must decide this in light of the individual circumstances of specific cases. If an employer can argue satisfactorily that dismissal would have occurred irrespective of the transfer then it is not automatically unfair and the dismissal must be examined on its own merits.
In this matter the original tribunal concluded that Ms Kaur’s dismissal was on account of Hare Wines anticipation of ongoing problems with her. Hare Wines appealed to the EAT, arguing that the dismissal was personal to Ms Kaur and unelated to the transfer, but the appeal was dismissed.
It rejected an argument that the existence of purely personal reasons for the dismissal precluded its being automatically unfair, expressing concern about the potential implications of such an argument for future TUPE tribunals, and held that there was no evidence to suggest that the original tribunal had viewed the matter incorrectly or applied any wrong tests. Secondly, it held that there was significance in the fact that Ms Kaur’s dismissal occurred within two days of the transfer. It was too great a coincidence. If, as the employers suggested, the reasons for the dismissal were unrelated to the transfer, the EAT felt that the dismissal would have occurred at another time.
The case has highlighted how carefully employers must proceed in dismissing an employee at the time of a transfer. The existence of a personal reason for dismissal will not ensure against the possibility of a tribunal making a ruling of automatic unfairness.
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