Nabbumba v Merton Priory Homes (Transfer of Undertakings)

An Employment Tribunal deciding whether a transfer-related dismissal is automatically unfair must first identify the actual reason or principal reason for dismissal. It must then decide whether that reason was the transfer itself under regulation 7(1)(a), or a reason connected with the transfer under regulation 7(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

It is insufficient to state only that a dismissal was connected with a transfer. The Tribunal must give adequate reasons for resolving the parties’ competing cases on those distinct statutory routes. A failure to identify the dismissal reason, explain the rejection of a material argument, or reconcile apparently inconsistent findings is not Meek-compliant.

The claimant’s employment transferred from London Borough of Merton to the respondent on 22 March 2010. Although she had been employed as a principal legal assistant, the legal work supporting the housing function did not transfer and the respondent had no in-house legal team. Following a later restructure, she was dismissed for redundancy with effect from 30 June 2011.

The Employment Tribunal at London South unanimously dismissed her unfair-dismissal claim. It found that the dismissal was for a reason connected with the transfer, that there was an economic, technical or organisational reason, and that the dismissal was fair. The claimant appealed, contending that the Tribunal had failed to identify the reason or principal reason for dismissal and had not determined whether regulation 7(1)(a), rather than regulation 7(1)(b), applied.

1. Appeal allowed. The Tribunal’s reasons were not Meek-compliant. The case was remitted to the same Tribunal.

2. The Tribunal was required first to determine the reason or principal reason for dismissal. It then had to decide whether that reason was caused by the transfer itself within regulation 7(1)(a), or was a transfer-connected reason within regulation 7(1)(b), of the Transfer of Undertakings (Protection of Employment) Regulations 2006. It instead moved directly to the latter question.

3. The competing application of regulations 7(1)(a) and 7(1)(b) was a clear issue before the Tribunal. Its statement that the dismissal was for a reason connected with the transfer did not explain why it rejected the claimant’s case that the transfer itself was the reason. The claimant was entitled to know why that argument had failed, consistently with Meek v City of Birmingham District Council [1987] IRLR 250.

4. The reasons also contained an unresolved tension. Paragraph 26.1 used the language of a reason connected with the transfer, whereas paragraph 26.4 stated that the dismissal stemmed from the circumstances of the transfer itself. That reinforced the conclusion that the statutory distinction had not been properly addressed.

5. The Appeal Tribunal declined to substitute a conclusion that regulation 7(1)(a) applied, since it had not heard the evidence or submissions. It also declined a Burns/Barke remission. The same Tribunal was directed to determine the reason or principal reason for dismissal and then the applicable regulation 7 route.

• Employment Appeal Tribunal: Appeal allowed. The dismissal of the unfair-dismissal claim was set aside and the case remitted to the same Employment Tribunal.
• Employment Tribunal, London South: On 27 March and 17 April 2012, unanimously dismissed the unfair-dismissal claim, found an economic, technical or organisational reason, and held the dismissal fair.