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+

Latest NewsTUPEUnfair dismissal

TUPE: Were the reasons for dismissal personal?

by Dr John McMullen 14 Mar 2019
by Dr John McMullen 14 Mar 2019 Mrs Kaur worked for a wine and beer wholesaler (stock photo)
Universal Images Group/REX/Shutterstock
Mrs Kaur worked for a wine and beer wholesaler (stock photo)
Universal Images Group/REX/Shutterstock

A recent Court of Appeal case looked at whether someone dismissed directly before a business transfer was right to claim for unfair dismissal. Dr John McMullen looks at the judgment and considers the implications for employers.

In February, the Court of Appeal handed down an eagerly anticipated TUPE judgment in the case of Hare Wines Ltd v Kaur.

TUPE transfers

TUPE transfers: line manager briefing

Recognise whether or not TUPE applies to a transfer 

Usually, under Regulation 7(1) of the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations, a dismissal is automatically unfair where the sole or principal reason for an employee’s dismissal is the transfer itself.

In the case of Hare Wines v Kaur, an employee was dismissed shortly before a transfer. However, the new employer’s motive in encouraging the dismissal of the employee was to avoid employing her because she had ongoing difficulties in her working relationship with another employee, who would have become her supervisor after transfer.

So was this a case where the sole or principal reason for the dismissal was the transfer, or was the dismissal was really about the anticipation of ongoing difficulties in the working relationship and therefore reasons which were purely personal to the employee concerned?

The facts

Mrs Kaur worked as a cashier at wine and beer merchants H&W Wholesale, which got into financial difficulties. Hare Wines agreed to purchase the business and take on any employees under TUPE.

However, this was to the exclusion of Mrs Kaur, whose employment was terminated by the transferor two days before the transfer. She brought a claim for automatic unfair dismissal.

An employment tribunal found that the transferee did not want to employ her because of ongoing difficulties in her working relationship with Mr Chatha, a transferring employee, and for that reason was told that she was not wanted.

However, the tribunal found that Mrs Kaur would have been employed immediately before the transfer but for her dismissal two days earlier, and the real reason for the dismissal was therefore the transfer, and so automatically unfair.

The appeal

Hare Wines appealed. The basis of its appeal was that the existence of purely personal reasons precluded the transfer from being the reason for the dismissal. The EAT rejected this and upheld the employment tribunal decision.

The Court of Appeal has now agreed, dismissing the employer’s appeal. Three things stood as obstacles to the employer’s case.

First, the reason the employer gave for the termination of Mrs Kaur’s employment at the time was false. It claimed Mrs Kaur had objected to the transfer and left voluntarily. The employment tribunal did not believe this. She had plainly been dismissed. That was not a good start.

Secondly, it was clear from the European Court case of P Bork International v Foreningen AF Arbejdsledere I Danmark that an important factor that may be taken into account in deciding the reason for dismissal is its proximity to the transfer.

The Court of Appeal adopted this approach, noting that although proximity to the transfer is not conclusive, it is often strong evidence in the employee’s favour.

Third, although it was true to say that the ongoing work relationship difficulties could be described as “personal” to Mrs Kaur, the Court of Appeal was influenced by the fact that the difficulties were long standing and ongoing. Her difficulties did not arise just on the point of transfer and were not going to end just afterwards.

In a situation where an employer had not taken action to resolve an ongoing relationship difficulty prior to the transfer, but does so only at the point of transfer by dismissing one of the parties in that difficult relationship, it is open to the tribunal to conclude that the reason for the dismissal was the transfer.

Principal reason

As Lord Justice Underhill succinctly put it: “The transfer was not simply the occasion for her dismissal but was, if not the sole reason, at least the principal reason for it: it was the transfer that made the difference between the problems being treated as a cause for dismissal and not.”

So even if an issue affecting an employee’s conduct or capability (which would not normally be transfer related) was suddenly acted upon on the point of transfer, the transfer might well be the sole or principal reason for the dismissal. Taking all of these factors into consideration, the employment tribunal decision was upheld.

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.

The practical advice arising from this case is that potential new employers under TUPE are not permitted to “cherry-pick” or decide not to take over employees who are clearly assigned to the transferring organisation.

An employer cannot pick and choose which employees are “desirable” and insist the “troublesome” colleagues are left behind or dismissed. Any perceived difficulties with transferring employees must be ironed out by the new employer following appropriate and fair employment procedures.

Dr John McMullen

Dr John McMullen is a partner at Wrigleys Solicitors LLP and author of Business Transfers and Employee Rights.

previous post
How inviting feedback can drive a positive candidate experience
next post
Intuition ‘very important’ in recruitment for nine in 10 leaders

You may also like

Restaurant tips should be included in holiday pay

21 May 2025

Fewer workers would comply with a return-to-office mandate

21 May 2025

Redefining leadership: From competence to inclusion

21 May 2025

Pay awards in real terms could fall for...

21 May 2025

Ryanair demands flight attendants pay back salary increase

21 May 2025

Consultation launched after Supreme Court ‘sex’ ruling

20 May 2025

Uncertainty over law hampering legal use of medical...

20 May 2025

Black security manager awarded £360k after decade of...

20 May 2025

Employers ‘worryingly’ ignorant about stress risk assessments

20 May 2025

UK and EU agree to collaborate on ‘youth...

19 May 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...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+