The Court of Appeal has held in Hare Wines Ltd v Kaur and anor that an employee who was dismissed on the day of a TUPE transfer on the pretext of difficulties in her working relationship with an employee of the transferee was automatically unfairly dismissed by reason of the transfer.
Mrs Kaur (K) was employed as a cashier by H&W Wholesale Ltd (H&W). In the same year Hare Wines Ltd (Hare Wines) started trading. K had a strained working relationship with a colleague, Mr Chatha (C), who was to become a director of HW Ltd. In early December 2014 it was decided that H&W Ltd would cease trading for financial reasons and it was agreed that Hare Wines would take on the business and employees of H&W. K was called into a meeting and, following this, received a letter in which she was informed that the business was ceasing to trade and, as a result, her employment was terminating with immediate effect. She was the only employee who was told that she was not wanted. It was common ground that on 9 December 2014 there was a TUPE transfer of the business of H&W to Hare Wines as a going concern.
At first instance the tribunal concluded that Hare Wines had anticipated that there would be ongoing difficulties in the relationship between K and C and therefore decided that it did not wish her contract of employment to transfer. It found that her dismissal was automatically unfair because the reason, or principal reason, for it was the transfer. Hare Wines appealed unsuccessfully to the Employment Appeal Tribunal (EAT) and then to the Court of Appeal. The Court of Appeal held that the tribunal was entitled to find the transfer was the reason for dismissal, pointing out that K was dismissed on the day of the transfer which was strong evidence in her favour. Furthermore the poor relationship between K and C had endured for some time without H&W seeking to terminate her employment, so there was a strong inference that the transfer was behind the dismissal.
Take note: The decision in Kaur demonstrates that, while there may be more than one possible reason behind a dismissal in a TUPE scenario, where the transfer is the strongest reason such a dismissal will be deemed to be by reason of the TUPE transfer. Here there was an ongoing relationship difficulty which had not been acted on in the past. It was in existence before the transfer and was expected to continue afterwards. The employer only acted on the difficulty on the transfer taking place and therefore it was open to the tribunal to identify the transfer as the stronger reason for dismissal.
This article is taken from HR Law - March 2019.
