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TUPE Transfer: Dismissal for Purely Personal Reasons can be Automatically Unfair for being related to a Transfer

In Hare Wines v Kaur [2019] the Court of Appeal (“CA”) confirmed the Tribunal and the Employment Appeal Tribunal (“EAT”) decision that in a TUPE transfer, dismissal for purely personal reasons cannot prevent a dismissal from being automatically unfair for being related to a transfer.

In this case, the Claimant worked as a cashier in a wine wholesale business. She and a colleague (“C”) had a consistently poor working relationship. This colleague was to become a director of the company, Hare Wines Ltd (“Hare Wines”), which took over the wholesale business as part of a TUPE transfer. The Claimant’s employment was terminated on the day of the transfer and she claimed automatic unfair dismissal. Hare Wines argued that the Claimant had objected to the transfer because of her difficult relationship with C; however, the Tribunal held that the Claimant had not objected and the real reason for the dismissal was that Hare Wines did not want to continue to employ the Claimant as it anticipated ongoing difficulties in her relationship with C.

The Tribunal found that this meant the sole or principal reason for the dismissal was the transfer and so the dismissal was automatically unfair under Regulation 7(1) TUPE. 

Hare Wines then unsuccessfully appealed to the EAT and the CA. Hare Wines argued that the real reason for the dismissal was not a reason resulting from the TUPE transfer. The CA disagreed with this argument. Once it had been established that the Claimant had not objected to the transfer, the main issue to determine was whether: (i) the Claimant had been dismissed because of her relationship with C, and the proximity of the transfer was coincidental; or (ii) because Hare Wines did not want her, the reason for that being that she did not get on with C.

The CA held that the Tribunal had been entitled to prefer reason (ii). The CA focused on two factors in their decision. Firstly, that the dismissal took place on the day of the transfer which was strong evidence in the Claimant’s favour, and secondly, that the Claimant’s poor relationship with C had endured for some time without the transferor seeking to terminate her employment.

Whilst this case does not alter existing case law, it is a helpful demonstration of the interaction of competing reasons for dismissal in a TUPE transfer scenario.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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