28 February 2019 #Employment
In Hare Wines v Kaur, the Claimant had a strained working relationship with a colleague who, as it happened, was going to be a director in the transferee’s business. The Claimant was dismissed on the transfer date and alleged that this was because of the transfer (and, thus, automatically unfair). The Tribunal agreed and, in doing so, recognised that the ongoing difficulties in the working relationship played a part in the dismissal.
The Respondent appealed, essentially arguing that if the ongoing difficulties were the reason for the dismissal then the transfer could not be. The Court of Appeal dismissed the appeal. It found that the relationship had been strained for some time without the employer seeking to terminate, creating a strong inference that the transfer was the principal reason for the dismissal. The proximity to the transfer date was also strong evidence of this. Whilst employees can be dismissed fairly for economic, technical or organisational reasons, there’s no similar provision for dismissals based on ‘purely personal reasons’.
It's important to remember here that the relevant test is whether the transfer was the ‘sole or principal’ reason for the dismissal; it need not be the only reason. Further, whilst in this case the transferee was aware of what was happening, usually transferees are reliant on employee liability information and further due diligence processes to get information on matters such as dismissals. With liability usually transferring to transferees under TUPE, it’s important that such processes are given due attention.