In the case of Hare Wines Limited v Kaur, the Court of Appeal upheld a decision of the Employment Appeal Tribunal (EAT) that dismissal of an employee immediately before a TUPE transfer was automatically unfair because the principal reason was the transfer and not ‘personal’ reasons relevant to the employee’s circumstances as argued by the employer.
The Claimant, Mrs Kaur, worked as a cashier for a wine and beer wholesaler, H&W Wholesale Ltd (H&W). In 2014 the business transferred to Hare Wines Limited (Hare) under a TUPE transfer. Two days before the transfer Mrs Kaur’s employment was terminated. H&W said that the dismissal was because the business was to cease trading, but Hare argued that it was because Mrs Kaur had objected to the transfer.
Mrs Kaur brought a claim for unfair dismissal, claiming that the principal reason for her dismissal was the transfer of the business; therefore, it was automatically unfair. Hare argued that Mrs Kaur had objected to the transfer and therefore any liability for her dismissal remained with H&W. Mrs Kaur claimed that the director of Hare, who was also a colleague of Mrs Kaur’s at H&W, did not want her to transfer because they had a strained working relationship. The Tribunal found in Mrs Kaur’s favour stating that she would have willingly transferred had she not been dismissed.
Hare appealed to the EAT arguing that the reason for the dismissal was entirely personal to Kaur and did not relate to the transfer. The EAT dismissed the appeal and upheld the Tribunal’s decision. Hare’s subsequent appeal to the Court of Appeal was also dismissed.
The EAT Judge, Mr Justice Choudhury, commented that where an issue concerning “an employee’s conduct or competence is suddenly acted upon at the point of transfer it is unlikely to be the sole or principal reason for dismissal”. Such action could be said to be motivated by the transfer thereby making it the principal reason for the dismissal.
Nicola Butterworth comments:
“Employers should take care when dismissing employees close to the time of a transfer. Dismissals for economic, technical or organisational (‘ETO’) reasons connected with transfers can be fair, however if the sole or principal reason for the dismissal is the transfer itself then it may be automatically unfair. Whether a transfer is the sole or principal reason for a dismissal will be a question of fact in each case. If you require any assistance please contact a member of the team.”
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