Thank you again for your supportive, efficient and common-sense approach
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. This Briefing Note explains how and when a TUPE-linked dismissal may be unfair.
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’:
- 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 & Answers
Yes. You need to have two years’ length of service. Further details are given in our Briefing Note Employment tribunal time limits for employees.
Yes. Even though your employment did not transfer, you can still argue your dismissal was automatically unfair if the facts of your case allow.
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.
Special provisions apply and for more information read our Briefing Note: TUPE and insolvent employers.
Reasons to Choose
Expert help from Solicitors
Jargon Free Advice
Convenient Easy Access
Best Client Care
Becoming our client is a straightforward process. However, before choosing Quantrills as your employment law solicitors you and us will want to be completely sure we are the right people to help you achieve your objectives. Having looked at our web site, if you like our approach and would like to discuss how we can help you, getting started is easy.
At Quantrills we are flexible in how we work with you and how we progress your case...
We welcome calls from our clients. Call us any time between 08.30AM to 5.30PM Monday to Friday to discuss your case. We will do our best to speak with you when you call, or if we can’t, you will get a call back as soon as possible.
01473 688 100Or request a call back
If it’s more convenient for you do come and see us. We do an excellent coffee. Whilst many of our clients don’t visit us, our offices are easy to find being just off junction 56 on the A14. Client meetings are by appointment and there is free car parking in front of our reception.Get Directions
We love emails; they help save time and avoid delays. Our case management system is set up to make the best use of them.Email us
Our web forms make it easy to give us the information we need from you. Our forms have a clever "save and return" feature so you can complete the form in more than one visit.View Forms
Latest Employee Knowledge Bank Articles
Use our knowledge bank of employee focused briefing notes, checklists and case reports to obtain trusted and accurate information about key employment law and HR topics to help you learn more about your employment law rights.View more