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Cashier sacked during TUPE process was unfairly dismissed

Posted: 27th November 2018   In: Business Employment

A cashier who was sacked by her firm while its business was being taken over by another company has won her claim of unfair dismissal.

The cashier, Ms S Kaur, worker for H&W Wholesale Ltd, which specialised in selling wine and beer.

It got into difficulties in December 2014 so Hare Wines Ltd agreed to purchase stock and take on any employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), which preserve an employee’s terms and conditions when a business is transferred to a new owner.

Hare then assumed responsibility for all employees except Ms Kaur, who was dismissed by H&W two days before the transfer took place. The dismissal letter said: “I am sorry to inform you that due to unforeseen circumstances concerning the business, we must inform you that our business will now cease to trade. As a result, we will unfortunately have to terminate your employment as from today.”

Ms Kaur brought a claim to the Employment Tribunal, alleging that the reason for her dismissal was the transfer of the business, which meant it was unfair under TUPE regulations. She said Hare did not want her to work for them because she had a strained relationship with one of her colleagues.

Hare’s defence was based on a meeting on 9 December in which it said that Ms Kaur had objected to the transfer and therefore under TUPE, her claim of unfair dismissal was not valid.

The tribunal found in favour of Ms Kaur. It said it preferred her evidence that Hare anticipated there would be ongoing difficulties in her working relationship with a colleague.

The judge said: “It is for this reason that the Claimant (Kaur) was the only employee told that she was not wanted. She did not object to the transfer. The reason for the dismissal was the transfer. As such her contract of employment transferred and she was unfairly dismissed.”

The Employment Appeal Tribunal has upheld that decision.

The case is a timely reminder that businesses cannot use transfers as an opportunity to dismiss employees they consider troublesome. TUPE offers significant protection and employers must ensure they follow the correct procedures to avoid costly claims and tribunal cases.

Please contact Jacqueline Webb if you would like more information about TUPE or any aspect of employment law.