TUPE

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Marshall v Game Retail Ltd EAT – 5 March 2015

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This case provides a useful reminder of where the burden of proof lies and how it operates in cases of TUPE related automatic unfair dismissal.

The Facts

The Claimant worked for Game Stores Plc as Group Finance Director.   On 26 March 2012 Game appointed administrators.  On the same day one of the administrators informed Head Office staff, including the Claimant, that they would be made redundant.  Six days later on the 2 April the business was transferred to Baker Acquisitions Ltd (which was later renamed Game Retail Ltd).  It was not in dispute that this was a transfer to which TUPE applied.  The Claimant claimed he had been dismissed for a reason connected to the transfer    A Mr B was who was directly below the Claimant was appointed as Finance Director.  His salary had been much lower than the Claimant’s.   Neither party called the administrator who had taken the decision to dismiss the Claimant to give evidence which the EJ observed was an ‘evidential gamble’.  In dismissing the Claimant’s claim the EJ held:

“Cogent arguments have been made on behalf of both parties why the sole or principal reason for the claimant’s dismissal was or was not the transfer itself.  One could endlessly speculate as to the motives and the reason of the person who made the decision to dismiss the claimant.  However, bearing in mind the burden of proof is on the claimant to show that the sole or principal reason for his dismissal was the transfer itself or a reason connected with the transfer I conclude that the claimant has not made his case out.  There is insufficient evidence to say on the balance of probabilities that the sole or principal reason for his dismissal was the transfer itself or a reason connected with the transfer.”

The Claimant appealed the decision on the grounds that the EJ had erred in applying the burden of proof.

 The EAT Judgment

The EJ was not referred to Kuzel v Roche Products Ltd (2008) CA which sets out the approach for the burden of proof in cases of automatic unfair dismissal.  Essentially this (applied to a TUPE case) means:

  1. there was a burden on the Claimant in the present case to produce some evidence supporting his case that his dismissal was by reason of or connected with the transfer;
  2. once that stage had been reached, it was for the Respondent to prove that the reason or principal reason for the dismissal was the different reason on which they relied.
  3. If the Respondent failed to do so, then it would be open to the EJ to find that the reason was the inadmissible reason on which the Claimant relied. That would often be the consequence of a failure of that type; but it was not in law a necessary consequence of such failure. The EAT held that the passage set out above in the ET decision displayed an error of law and the EJ had not properly applied the burden of proof, whilst at the same time observing that it was a rare case which would turn on the burden of proof but this was one such case.

The EAT held that the passage set out above in the ET decision displayed an error of law and the EJ had not properly applied the burden of proof as the Claimant had adduced some evidence in support of his case that the dismissal was for a reason connected to the transfer.    The EAT observed that it was a rare case which would turn on the burden of proof but this was one such case.

Link to Judgment

 

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