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 redeployment.
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.