Proximity to the transfer is an important factor in deciding whether a dismissal is automatically unfair under TUPE

The Employment Appeal Tribunal (“EAT”) confirmed in Hare Wines Ltd v Kaur UKEAT/0131/17 that where an employee is dismissed immediately prior to a TUPE transfer, the proximity of the dismissal to the transfer will be an important factor in determining whether the sole or principal reason for the dismissal was the transfer, and so if the dismissal was automatically unfair under TUPE. This could be the case even where other factors are also in play.

Facts

Mrs Kaur was employed by H&M Wholesale Limited and was dismissed two days before the business was transferred to Hare Wines Ltd. Mrs Kaur bought a claim for unfair dismissal and it was found that the motivating factor for her dismissal was her difficult working relationship with another employee who would have been her supervisor following the transfer. However, due to the proximity of the dismissal to the transfer the Tribunal found the real reason for the dismissal was in fact the transfer and therefore that the dismissal was automatically unfair. Hare Wines appealed the decision, claiming that the Tribunal had failed to properly apply the test for automatic unfair dismissal or that the Tribunal had erred in concluding that the “sole or principal reason” for the dismissal was the transfer.

Decision

The EAT upheld the Tribunal’s decision. It stated that when deciding whether a TUPE transfer is the sole or principal reason for a dismissal the Tribunal must have regard to all of the circumstances.

Although the difficulties between Mrs Kaur and her supervisor might have been a motivation for the dismissal, these issues had been longstanding and the employer had previously taken no action to resolve them. It was likely that, were it not for the transfer, Mrs Kaur would not have been dismissed. The Tribunal had therefore not erred in concluding that the sole or principal reason for the dismissal had indeed been the transfer.

Comment

Although TUPE only renders dismissals automatically unfair when the sole or principal reason for the dismissal is the transfer, this case highlights that even where the employer has other reasons for the dismissal, caution should be exercised if the dismissal is carried out close to a transfer date.