Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Glimmer of clarity over dismissals under Tupe

by Personnel Today 16 May 2000
by Personnel Today 16 May 2000

Transfer-connected dismissals could be deemed fair if the transfer is for an
ETO reason, the EAT has ruled

The laws in relation to Tupe is, it seems, never straightforward. But it
appears that we may have some clarification at least on one point of
uncertainty as a result of a recent EAT case, Collins v John Ansell &
Partners
, EAT 9/3/2000.

Employers may remember the case of Kerry Foods v Creber earlier this
year, which posed the question of whether a transfer-connected dismissal can
ever be fair.

The Kerry case decided that, if it were found that the principal reason for
the dismissal was connected with the transfer of an undertaking, that dismissal
was automatically unfair – under regulation 8(1) – and that was the end of the
story. It would not be open to an employer to then go on to argue that the
dismissal was for an economic technical or organisational reason – an ETO –
entailing changes in the workforce under regulation 8(2). In effect, therefore,
regulations 8(1) and 8(2) were mutually exclusive.

The concern for employers was that this was likely to mean more
automatically unfair dismissals, which would curtail opportunities to
reorganise the workforce following a transfer, in circumstances where
previously they would have been able to argue an ETO reason. It was clear that
clarification was needed and now, in the Collins case, the EAT has made a firm
statement that the approach suggested in Kerry is not the correct one.

Relying on two previous Court of Appeal decisions as authority for its reasoning,
the EAT held that the way in which regulations 8(1) and 8(2) interrelate is a
two-stage process.

First, a tribunal will decide whether an employee’s dismissal was for a
reason connected with the transfer, thus making it potential automatically unfair
under 8(1). Second, it should then go on to decide whether there is an ETO
reason for the dismissal which the employer can put forward under section 8(2),
such as genuine redundancies following a transfer.

Facts of the case

Collins worked for a small company in Tunbridge Wells, having decided to
work for a local company rather than travel into London. The company was sold
to John Ansell & Partners, however, which carried on the business in
London.

Collins, whose contract transferred under Tupe, did not want to commute and
so resigned, claiming constructive dismissal. When the case came to the EAT it
looked at the previous Court of Appeal decisions of Warner v Adnett and
Whitehouse v Chas A Blatchford & Sons.

The EAT held that the way regulation 8 works is that if the reason or
principle reason for the dismissal is transfer-connected, the dismissal is
automatically unfair unless the reason counts as an ETO reason. If it does, the
dismissal is taken out of the category of automatically unfair dismissals under
regulation 8 (1) and will be a potentially fair dismissal under regulation 8
(2). The fairness or otherwise of that dismissal is then considered in the
normal way under section 98 (4) of the Employment Rights Act 1996 – that is, in
the same way tribunals assess the reasonableness of standard unfair dismissal
claims.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

In the Collins case, the EAT agreed that there was a constructive dismissal
for a transfer-connected reason, namely the moving of the business to London,
but that this reason could also constitute an "economic" or
"organisational" reason – an ETO. It would be open, therefore, to the
employer to argue that the dismissal had been reasonable under section 98 (4)
of the Employment Rights Act.

Sarah Lamont is a partner at Bevan Ashford

Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Employer’s reputation is the key to success
next post
Employees get access to a sensitive subject

You may also like

Dallas Cowboy Cheerleaders receive 400% pay rise

4 Jul 2025

FCA to extend misconduct rules beyond banks

2 Jul 2025

‘Decisive action’ needed to boost workers’ pensions

2 Jul 2025

Business leaders’ drop in confidence impacts headcount

2 Jul 2025

Why we need to rethink soft skills in...

1 Jul 2025

Five misconceptions about hiring refugees

20 Jun 2025

Forward features list 2025 – submitting content to...

23 Nov 2024

Features list 2021 – submitting content to Personnel...

1 Sep 2020

Large firms have no plans to bring all...

26 Aug 2020

A typical work-from-home lunch: crisps

24 Aug 2020

  • Empowering working parents and productivity during the summer holidays SPONSORED | Businesses play a...Read more
  • AI is here. Your workforce should be ready. SPONSORED | From content creation...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+