Dismissal partly due to poor working relationships was deemed to be TUPE related

The Court of Appeal (CA) has ruled that a dismissal of an employee partly due to poor working relationships between her and a colleague is deemed to be TUPE related at the time of the transfer and therefore automatically unfair. Hare Wines Ltd v Kaur [2019] EWCA Civ 216

Mrs Kaur had been employed by Hare Wines Ltd for a number of years and had a long term strained working relationship with a colleague (‘C’). It was decided that Hare Wines would cease trading and another company, (‘the Appellant’), would take on its business and its employees. C was to become the new director of the Appellant company.

All staff transferred to the Appellant as per the TUPE regulations, apart from Mrs Kaur.

Mrs Kaur brought her claim against both Hare Wines Ltd and the Appellant. The Appellant asserted that the transfer of Mrs Kaur’s employment had been prevented by her own objections and claimed that she had given her difficult relationship with C as her reason for not wanting to work for the Appellant.

Mrs Kaur asserted that she had not objected to the transfer, and so presented a claim in the Employment Tribunal (ET) for Unfair Dismissal.

The ET held that Mrs Kaur had not objected to the transfer and that the real reason for the dismissal was that the Appellant did not want her to work for them because it anticipated ongoing difficulties in her relationship with C. The ET therefore concluded that Mrs Kaur’s employment had transferred to the appellant under TUPE and the dismissal was automatically unfair.

The Appellant appealed the decision in the Employment Appeal Tribunal. (EAT)

The EAT concluded that Mrs Kaur being dismissed on the day of the transfer meant there was strong conclusive evidence that the dismissal was TUPE related. More importantly, the fact that the poor relationship between Mrs Kaur and C had endured for some time without Hare Wines Ltd seeking to terminate her employment gave rise to a strong inference that the transfer, rather than that relationship, was the principal reason for dismissal. The appeal was dismissed.

Hare Wines also unsuccessfully appealed to the CA. The central question was whether:

1. Mrs Kaur had been dismissed because of her relationship with C, and the proximity of the transfer was coincidental; or
2. because the Appellant did not want her to transfer, the reason for that being that she did not get on with C.

It was for the CA to determine which was the sole or principal reason for the dismissal, and the CA preferred the latter to the former. Additionally, it was stated that a dismissal for purely person reasons could not be sustainable. The CA reiterated the point that the transfer was used as the opportunity to dismiss Mrs Kaur which meant that in the circumstances, the transfer was at the very least the sole or principal reason for the dismissal.

The outcome of this case reiterates that the rules of Unfair Dismissal and TUPE do not recognise “personal reasons” as a category for a fair dismissal.

It reaffirms the position that a dismissal at the time of a TUPE transfer will be automatically unfair unless the Employer can show that it is for a Technical, Economical or Organisational reason entailing changes in the workforce.

Additionally, employers who are transferring their business, or indeed taking over one, need to be mindful when dismissing an employee. More specifically, employers should be able to draw a neat distinction between a transfer being simply the occasion for the dismissal and the transfer being the sole or principal reason for it.