02 February 2017 #Employment
In Davies v Droylsden Academy, the claimant was a lettings manager at a company which provided property services to Droylsden Academy. The Academy took the contract back in house and told the claimant that there would be no role for her after the transfer as her duties were being absorbed by its existing staff. The transfer occurred in November and the claimant was formally made redundant the following March. During this period, she had remained at home and was not paid.
The Tribunal found that the decision not to have a lettings manager was an organisational change which entailed changes in the workforce and thus was potentially fair. The redundancy process was genuine and fairly carried out and, therefore, the ultimate dismissal was fair. On appeal, the EAT was sympathetic to the way the claimant had been treated and felt the failure to pay her or give her work may have been a breach of contract but it agreed with the Tribunal in relation to her dismissal.
Dismissals ‘because of’ the transfer will be automatically unfair, however, if an employer can demonstrate that dismissal was for an ETO reason which entails changes in the workforce (such as the reduction in staff here) then it can stay on the right side of TUPE.