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).
K was employed by R1, the transferee, which got into financial difficulty in late 2014. HW agreed to purchase R1’s business. At a meeting held just before the transfer 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 11 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 for the following reasons:
- Just because a reason is personal to the employee does not mean it is not because of the transfer. The regulations are designed to protect employees and caution should be exercised before introducing new categories of defence which may undermine this protection.
- The proximity of the dismissal to the transfer is always a relevant consideration. P Bork International v Foreningen Af Arbejdsledere I Danmark
- Where there were existing difficulties which were ongoing but these were only resolved at the point of the transfer by dismissal it is open to the Tribunal to conclude that the transfer is the reason.
- The ET had not taken a ‘but for’ approach but has sought to identify the reason forth dismissal (see Smith v Brooklands College).
In short: “An issue affecting an employee’s conduct or competence, if suddenly acted upon at the point of transfer, is unlikely to be the sole or principal reason for the dismissal. An employer taking the opportunity to dismiss in such circumstances could reasonably be said to be motivated by the transfer, thereby making the transfer the principal reason for the dismissal. It will all, of course, depend upon the facts of individual cases”.