TUPE

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Hare Wines Ltd v Kaur CA – 22 February 2019

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The Court of Appeal dismissed the transferee’s appeal in this case, for essentially the same reasons as the EAT.

The issue in this case is whether an employee dismissed immediately before the transfer was automatically unfairly dismissed because the principal reason for the dismissal was the transfer (Reg 7).

The Facts

K was employed by R1, the transferor, which got into financial difficulty in late 2014.  HW agreed to purchase R1’s business.   At a meeting held just before the transfer, on 9 December 2014, K was dismissed by R1.  She was told the reason was that the business was ceasing to trade.  However, 6 or 7 other employees transferred from R1 to HW.   HW’s case was that at the meeting held on the 9 December, two days before the transfer, K had objected to transferring.

 

The ET Judgment

The ET had to resolve a factual issue.  HW said that at the meeting on the 9 December K had objected to the transfer by saying she was not happy working with HW.  K’s case was that she had a strained relationship with a manager, C, and that C did not want her to transfer and hence HW also did not want her to transfer.   The Tribunal resolved this factual dispute in favour of K.  It held but for her dismissal on the 11 December she would have transferred and therefore the reason for the dismissal was the transfer.

 

The EAT Judgment

HW appealed on the ground that the ET erred in law in determining the reason was the transfer or gave insufficient reasons for this decisions.  Essentially HW’s case is that reason for the dismissal was personal to K’s circumstances and therefore not related to the transfer The EAT (Choudhury J) dismissed the appeal (see post here )

 

The Court of Appeal Judgment

The Court of Appeal (Underhill & Bean LJJ) were not impressed by the attempt to distinguish personal reasons for a dismissal from other reasons.  It held that the whilst the problems between K and her manager, C, had been ongoing for some time, no action was taken until the transfer.  The transfer was used as the opportunity to dismiss K because the transferee anticipated ongoing difficulties after the transfer. “It therefore decided that it did not wish her contract of employment to transfer and communicated that wish to the transferor. That was why she was told that she was not wanted. The reason for the dismissal was the transfer.”

Comment

It is trite to observe that an employee cannot be put in a better position because of a transfer then they would otherwise be.  This appeared be at the heart of the transferee’s argument.  That K’s contract could have ended at any time due to the ongoing conflict with the manager, C. She could not be put in a better position just because matters came to a head at the point of transfer. However, the difficulty with that argument, as the Court of Appeal observed, is that does not engage with the reason why it came to a head at that point.  The transfer was used at the opportunity to deal with the issue. In those circumstances the transfer was at least the principal reason for the dismissal.

 

 

Link to EAT Judgment

Link to CA Judgment

 

 

 

 

 

 

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