Dismissal motivated by personal reasons may still fall within TUPE
Monday 4th March 2019
In Hare Wines Limited v Kaur, the Court of Appeal provided a reminder of the manner in which competing rationales for a decision to terminate will interact in the context of a claim for automatically unfair dismissal.
The dismissal of an employee will be automatically unfair if the sole or principal reason for the dismissal is a TUPE transfer.
Whether or not this is the case is a matter of fact for a tribunal to decide. If the employer can show that the dismissal would have occurred independently of the transfer, then it will not be automatically unfair (though it may of course be shown to be unfair for another reason).
Mrs Kaur was employed as a cashier for the respondent wine merchant. She had a difficult working relationship with one of her colleagues, Mr Chatha. In 2014, the business TUPE transferred to another entity, with Mr Chatha due to become director of the new business. Mrs Kaur’s employment was terminated on the day of the transfer.
Mrs Kaur argued that the sole or principal reason for her dismissal was the transfer. She said it occurred because she did not get on with Mr Chatha, and the business did not want him to have to manage her. The respondent denied this, arguing that Mrs Kaur was dismissed because she had objected to the transfer.
Decision and comment
The Court of Appeal agreed with the decisions of the Employment Tribunal and EAT. It noted that where there is a factual dispute the ET was perfectly entitled, as it had done, to prefer the employee’s version of events to that of the employer. The Court pointed to the fact that Mrs Kaur was dismissed on the day of the transfer which, while not fatal to the employer’s case, was strong evidence that the dismissal was linked to the transfer. It also noted that problems between Mrs Kaur and Mr Chatha had been ongoing for some time with no previous efforts having been made to terminate her employment. The inference from this was that the dismissal occurred at the request of the transferee.
While this case does not change the case law, it reminds employers that they should not be tempted to use a business transfer as an opportunity to dismiss an employee with whom there are existing issues. Addressing problems when they arise in a consistent manner will save time and money in the longer term. The decision also illustrates that simply having a personal reason for terminating a contract of employment will not necessarily take such a dismissal outwith the scope of TUPE.