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Nick Siddall on Breaking the Link between a TUPE Transfer and a Dismissal

The age-old concern of employers is the extent to which, in a post or pending transfer situation, they can lawfully dismiss an employee and avoid a finding that the reason for that dismissal was the TUPE transfer (rendering such dismissal automatically unfair).

Parliament acted in 2013 in a manner calculated to render such an argument easier to advance when it amended Regulation 4 TUPE to provide that a dismissal was automatically unfair if the transfer was the ‘sole or principal reason’ for the dismissal in place of the previous looser language of ‘a reason related to the transfer’.

In the recent decision of Choudhry J in Hare Wines-v-Kaur [2017] UKEAT/0131/17 the EAT grappled with how this test was to be applied when pre-existing relationship difficulties were alleged to be the reason for dismissal as opposed to the transfer. The employer had lost on this point before the Employment Tribunal in the context of a dismissal occurring 2 days pre-transfer and sought to challenge that decision on appeal.

Relevant Factors
The EAT upheld the ET’s determination on the basis it was a matter of fact but gave some guidance as to how a link between dismissal and transfer was properly to be assessed.

Relevant factors are:

1. The ‘sole or principal reason’ for a dismissal is a question of fact for the Employment Tribunal (paragraph 17). Mere connection to the transfer no longer suffices (paragraph 18).
2. In response to the suggestion that ‘purely personal reasons’ -i.e. a prior fall out with a manager- meant that the transfer could not be the sole or principal reason for dismissal the EAT noted the protective purpose of TUPE. It stated that it was cautious “in expanding or introducing what might appear to be new categories of defence” (paragraph 19).
3. The proximity of the dismissal to the transfer is an important factor in assessing the extent of any link (paragraph 20).
4. It was relevant that the personal difficulties were longstanding. The EAT observed “it seems to me that in a situation where an employer had not taken action to resolve an ongoing relationship difficulty prior to the transfer, but does so only at the point of transfer by dismissing one of the parties in that difficult relationship, it is open to the Tribunal to conclude that the reason for the dismissal was transfer” (paragraph 21).
5. To allow a new category of defence of personal reasons risked undermining the protective aims of TUPE (paragraph 22).

In response to a hypothetical situation discussed in argument the EAT observed (paragraph 25)

“[It] is a somewhat different situation from the one where the employer has an ongoing reason which he might have relied upon to dismiss an employee but did not act upon prior to the transfer.  In that scenario, if the transfer was used as an occasion to take action where hitherto none had been taken, there is a much stronger basis for saying that the employee was dismissed by reason of the transfer.”

Conclusion
The EAT’s judgment emphasises that the reason for dismissal remains a question of fact for the Employment Tribunal. It also emphasised the protective purpose of TUPE and that this will not easily be circumvented by fine distinctions as to an employer’s alleged motivation. There is a strong sense from the judgment that the distinction advanced by the employer was not to be given much house room when a dismissal occurred two days prior to an anticipated transfer.

Thus the judgment serves as a warning to employers that whilst personal reasons may be logically distinct from the transfer as a reason for dismissal; only acting on the same on the eve of a transfer is likely to lead an Employment Tribunal to the conclusion that the transfer (as opposed to the difficulties) was the real reason for dismissal.

Article written by Nick Siddall.