Employment Law Speed Read – 04/03/19
4th March, 2019
In Hare Wines Ltd v Kaur, the Court of Appeal considered whether an employee who was dismissed on the day of a TUPE transfer had been automatically unfairly dismissed.
Mrs Kaur worked as a cashier at a wine wholesale business. Throughout the duration of her employment, the business was run by a number of different corporate entities. In 2014 Mrs Kaur was employed by H&W Wholesale Ltd; however, due to financial reasons it was decided that H&W Wholesale Ltd would cease trading. In December 2014 the business transferred to Hare Wines Ltd.
On 9 December 2014, the day of the TUPE transfer, a director of H&W Wholesale Ltd wrote to Mrs Kaur to inform her that her employment contract was terminated with immediate effect. H&W Wholesale Ltd alleged that Mrs Kaur had objected to the transfer due to her strained relationship with her colleague, Mr Chatha, who was to become a director of Hare Wines Ltd.
Mrs Kaur brought an automatic unfair dismissal claim in the Employment Tribunal (ET). Regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), states that if an “employee of the transferor or transferee is dismissed, that employee shall be treated… as unfairly dismissed if the sole or principal reason for his dismissal is the transfer.”
The ET found in favour of Mrs Kaur and rejected the argument that Mrs Kaur had objected to the transfer. The ET held that the ‘real reason’ for the dismissal was that Hare Wines Ltd did not want to employ Mrs Kaur due to the ongoing difficulties in her relationship with Mr Chatha. Accordingly, the sole or principal reason for Mrs Kaur’s dismissal was the transfer and as such, her dismissal was automatically unfair.
Hare Wines Ltd appealed to the Employment Appeal Tribunal (EAT) on the basis that the reason for the dismissal was personal to Mrs Kaur and it therefore did not relate to the transfer.
Employment Appeal Tribunal
The EAT dismissed the appeal and found in favour of Mrs Kaur. The EAT held that the principal reason for the dismissal was the transfer and emphasised that TUPE is designed to protect employees. Hare Wines Ltd appealed to the Court of Appeal (CA).
Court of Appeal
The CA dismissed the appeal and held that the principal reason for Mrs Kaur’s dismissal was the transfer. The CA attached significance to the fact that Mrs Kaur was dismissed on the day of the transfer and that the strained relationship between Mrs Kaur and Mr Chatha had endured for some time without H&W Wholesale Ltd seeking to terminate her employment.
Further, although dismissals for economic, technical or organisational reasons connected with the transfer may be fair; TUPE does not recognise a category of ‘personal reasons’ for dismissal.
This case demonstrates that if the sole or principal reason for the dismissal is the transfer, the dismissal will be automatically unfair. Further, although close proximity between the dismissal and the transfer is not conclusive, it will often constitute strong evidence in the employee’s favour.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.