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TUPE and Poor Working Relationships - Were the Reasons for Dismissal Personal?

on Friday, 15 March 2019.

An employee who was dismissed due to a difficult working relationship with a colleague, rather than being TUPE-transferred along with other employees...

... was found to have been automatically unfairly dismissed, as the principal reason for the dismissal was the transfer.

Hare Wines Ltd v Kaur

Ms Kaur was employed by H&W Wholesale, where she had a "strained" working relationship with a colleague, Mr Chatha. Hare Wines Limited took on the business and employees of H&W, and Mr Chatha became a Director.

Ms Kaur's employment was terminated by H&W with immediate effect on the day of transfer. Ms Kaur made claims against H&W and Hare Wines for automatic unfair dismissal by reason of the TUPE transfer, for redundancy pay, and for notice pay.

She argued that the real reason for her dismissal was that Hare Wines did not want her because it anticipated ongoing difficulties in her relationship with Mr Chatha. Hare Wines asserted that Ms Kaur had objected to the transfer of her employment because of her difficult working relationship with Mr Chatha and so had terminated her own employment.

The Employment Tribunal (ET) preferred Ms Kaur's evidence on this point and found that she had transferred to Hare Wines pursuant to TUPE, that her dismissal was automatically unfair because the reason or principal reason for it was the transfer, and that Hare Wines breached the notice provisions of her contract of employment.

The Employment Appeal Tribunal (EAT) upheld the ET's decision. Hare Wines appealed, arguing that the reasons for Ms Kaur's dismissal were "purely personal" and not due to the transfer, and that the transfer only provided the occasion for the dismissal.

The Court of Appeal's Decision

The Court of Appeal (CA) upheld the ET and EAT's decisions that the transfer was the sole or principal reason for the dismissal.

Once it was decided that Ms Kaur had not objected to the transfer, the question was whether she had been dismissed because of her relationship with Mr Chatha and the proximity of the transfer was coincidental, or because Hare Wines did not want her to transfer because she did not get on with Mr Chatha. The CA noted that the problems between Ms Kaur and Mr Chatha had been ongoing for some time during Ms Kaur's employment but had not been regarded as cause for dismissal. Secondly, the dismissal had taken place on the day of the transfer and, whilst not conclusive, was a factor against Hare Wines.

What Can You Learn from This Case?

You should consider carefully the reasons for a dismissal, particularly when there is close proximity to a TUPE transfer.

Even where there are reasons for the dismissal which are not related to the transfer, the court may find that the influence of the transfer is significant enough to make the transfer the sole or principal reason for the dismissal.

If you need advice as part of a TUPE transfer, please contact Katie Hurst in our Employment Law team on 0121 227 3751.

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