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“Personal” reason for dismissal and TUPE transfer

Calendar June 6, 2019

In the recent case of Hare Wines Ltd v Kaur & anor [2019] EWCA Civ 216, CA, the Court of Appeal found that Mrs Kaur’s dismissal was automatically unfair.

Mrs Kaur was employed as a cashier by H&W Wholesale, which experienced financial difficulties and was purchased by Hare Wines. As a result, Hare Wines agreed to take on any employees under TUPE. However, Mrs Kaur’s employment was seized just two days before the transfer. She lodged a claim with an Employment Tribunal for automatic unfair dismissal.

Mrs Kaur pleaded that she was dismissed, while the Company argued that Mrs Kaur objected to the transfer. Having heard evidence from both the Claimant and the Respondent, the employment judge found the Claimant’s evidence to be credible. The Employment Tribunal found that the employer chose to dismiss Mrs Kaur, as she had difficult working relationship with Mr Chatha, another employee of the Company who would be Mrs Kaur’s supervisor after the Transfer. Therefore, the true reason for Mrs Kaur’s dismissal was the transfer, making it automatically unfair.

The Company appealed; however, the original findings of the Employment Tribunal were upheld. The matter proceeded to the Court of Appeal, which looked at the proximity of the transfer to the dismissal and the fact that issues between employees have been ongoing, and nothing has been done about it by the employer up until the Transfer.

The Respondent did not rely on economic, technical or organisational (“ETO”) reason for dismissal, which under Section 7(2) of TUPE Regulations 2006 would be regarded as fair reason for dismissal. The main argument made by the Respondent was that the dismissal was purely for a personal reason (i.e. poor relationship with another employee) and that the transfer was coincidental.

The Court of Appeal found that the law of unfair dismissal or of transfer of undertakings does not recognise “personal reason” and that
“the poor relationship between Mr Chatha and Mrs Kaur had apparently endured for some time without H&W seeking to terminate her employment. They only did so at the request of the transferee immediately before the transfer. The inference that the transfer (rather than the poor relationship in isolation from the transfer) was the reason or principal reason for dismissal was therefore very strong indeed.”

Therefore, the Court of Appeal found that the reason to dismiss Mrs Kaur was a TUPE transfer and regarded as automatically unfair.

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