TUPE and protection against being unfairly dismissed

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.

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.

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.

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.

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.

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?.

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?