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TUPE and protection against unfair dismissal

Posted on 11th July 2013
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If you are dismissed before or after a TUPE transfer you may have been automatically unfairly dismissed. This enhanced protection does not apply to all TUPE related dismissals but TUPE does make it quite difficult for any employer to dismiss an employee fairly. You can use this checklist to see if your TUPE linked dismissal is unfair.

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Julie Temple Julie
Temple
Partner Telephone: 01473 694407

To be unconnected your employer will need to show your dismissal would have occurred anyway

Was your dismissal automatically unfair?

As an employee, your dismissal by your outgoing or the incoming employer will be automatically unfair if the reason (or principal reason) for your dismissal was either:

  • the TUPE transfer itself; or
  • a reason connected with the transfer but which was not an economic, technical or organisational reason entailing changes in the workforce (known as an ‘ETO reason’).
This is the case whether your dismissal occurred before or after the transfer.

Was your dismissal because of the transfer itself?

Dismissals because of the transfer and for no other reason are rare. A dismissal may be because of the transfer if the employer is dismissing to make a business (or part of it) more saleable. 

Was your dismissal connected to the transfer?

A dismissal for a reason connected with the transfer are more common. To be unconnected your employer will need to show that your dismissal would have occurred anyway. This may be the case if you have committed an act of misconduct, or your work performance has dropped, or you have fallen ill and been off work for a period of time.

Assuming your dismissal was for a reason connected to the transfer, your employer must go on and show that your dismissal was for an ETO reason, and this can be quite difficult to do.

Did your employer have a valid ETO reason?

Thus TUPE dismissals are not automatically unfair if they are made for reasons relating to the transfer and there was a genuine ETO reason. Reasons relating to the outgoing or incoming employers’:

  • profitability;
  • equipment used; or
  • management or staffing structures;
may well all qualify as ETO reasons.

Was there a change in the workforce too?

However, the ETO reason relied upon must also involve a change in the workforce. This requires a change in the number of employees needed or the nature of the work they are employed to do. Dismissals for redundancy, depending on why the redundancies are needed, could well fall within the ETO reason exception.

In many cases the ETO reason is not established because the employment tribunal is not satisfied there was a change in the workforce.

What if I resign?

If you resign because your employer (whether the incoming or outgoing employer) has committed a repudiatory breach of your contract of employment or in response to a substantial change in your working conditions which is to your material detriment you will be treated as dismissed.

Whether or not your dismissal through resignation was unfair will still need to be considered. If your employer’s reason for the treatment was because of the transfer or for a reason related to it and it does not have an ETO reason, your dismissal through resignation will be automatically unfair.

For more details on dismissals following a repudiatory breach by your employer see What is a constructive unfair dismissal?.

Claims for unfair dismissal

TUPE does not prevent any dismissal taking effect even when it is automatically unfair. Your dismissal will still be effective; you will still have been dismissed but you will have the right to bring a claim for unfair dismissal.

If you are dismissed for a reason unrelated to the transfer or if your employer had an ETO reason for your dismissal then your dismissal will not be automatically unfair. You may nevertheless still be able to bring a claim for ordinary unfair dismissal.

To find out more about claims for unfair dismissal, whether you can claim and how to claim see When will your dismissal be unfair?

Questions and answers

In TUPE cases do I need a minimum length of service to claim unfair dismissal?

Yes. Depending when your employment started you will need to have one or two years length of service. Further details are given in our Briefing Note Employment tribunal time limits for employees.

My employment did not transfer under TUPE and I have been dismissed. Can I claim I was automatically unfairly dismissal?

Yes. Even though your employment did not transfer, you can still argue your dismissal was automatically unfair.

Does when my dismissal took place matter?

Yes. Although there is no fixed time period after which a dismissal can be considered to be unrelated to the transfer when you are dismissed really matters.

If your dismissal takes place prior to the transfer and is unrelated or for an ETO reason the outgoing employer is liable for your dismissal. If you are dismissed pre-transfer because of the transfer or a reason related to it and there is no ETO reason, the incoming employer is liable for your dismissal. This is not a typo!

If your dismissal takes place after the transfer, regardless of the reason, related or unrelated, for an ETO reason or not, the incoming employer is liable.

What if my employer is insolvent?

Special provisions apply and for more information read TUPE and insolvent employers.

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