Unfair dismissal, consultation and Tupe

Case roundup

Kerry Foods v Creber & others IDS Brief 653, EAT

• The receiver of a sausage factory dismissed all staff within days of its
appointment and ceased production. It sold the business to Kerry, which
acquired the brand name and goodwill, but no staff.

All employees brought successful claims for unfair dismissal against Kerry.
The tribunal held there was a relevant transfer for Tupe purposes, even though
Kerry had not taken on any of the staff, and that the main reason for the
dismissals was the transfer. There had been no consultation by the receiver and
the tribunal made an award against Kerry of four weeks’ pay for each employee.

Kerry appealed. The EAT held that the main reason for the dismissals was the
transfer and so liability passed to Kerry. áhe ETO defence was not available to
Kerry since the dismissals were entirely transfer-related. More significantly,
EAT concluded that the right to collective consultation before a Tupe transfer
arises from the contract of employment and this too is a duty which passes to
the transferee.

Redeployment and disability

Kent County Council v Mingo EOR 89, January 2000

• After injuring his back, Mingo was fit only for light duties. He was found
temporary work in a day centre and a formal recommendation was made for

He was classified as category B which covered staff redeployed because of
incapability/ill health. Category A covered staff at risk of, or under, notice
of redundancy and they were given priority consideration for alternative
employment. Mingo expressed interest in several posts but these were reserved
for category A staff.

When his appointment at the day centre ended he was dismissed under the
council’s incapability procedure. He brought a successful claim for disability
discrimination. The tribunal held he had received less favourable treatment
compared with category A staff and that treatment could not be justified.

Further, the council had failed to take reasonable steps to prevent
dismissal by considering whether adjustments could be made to any vacant posts.
The council was unsuccessful in its appeal.

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