Hare Wines Ltd v Kaur & Anor

For an automatically unfair dismissal under regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the transfer must be the sole or principal reason for dismissal; a mere connection with it is insufficient. That question is one of fact, assessed in all the circumstances.

The existence of an employee-specific or personal issue does not preclude a finding that the transfer was the reason for dismissal. Where an employer leaves an ongoing issue unresolved but dismisses the employee only when the transfer occurs, the tribunal may infer that the transfer was the operative reason. Close temporal proximity is an important, though not conclusive, factor.

The claimant was employed as a cashier by H & W Wholesale Ltd. When its wholesale business was transferred to Hare Wines Ltd, all other existing employees were taken on, but the claimant’s employment was terminated two days before the transfer.

The Employment Tribunal preferred the claimant’s account of a meeting on 9 December 2014. It found that she had not objected to transfer and that the reason for dismissal was the transfer. It accordingly held that her contract transferred and that she had been unfairly dismissed.

Hare Wines appealed on the permitted ground that the Tribunal had either found dismissal because of a difficult relationship with a colleague, or had inadequately explained why the transfer was the principal reason for dismissal.

1. Appeal dismissed. The Employment Tribunal applied the correct statutory question under regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006: whether the transfer was the sole or principal reason for dismissal. It did not apply the impermissibly weaker test of a mere connection with the transfer.

2. The reason for dismissal is a factual question to be determined from all the circumstances. A reason described as personal to an employee is not mutually exclusive of transfer as the operative reason. Creating a separate defence for such reasons could undermine the protection afforded by the Regulations.

3. An ongoing relationship, conduct or competence issue may support a finding that transfer was the principal reason where the employer had not acted on it before the transfer but used the transfer as the occasion to dismiss. The result depends on the facts. The proximity of dismissal to transfer is an important, but not conclusive, consideration.

4. Read as a whole, the Tribunal’s Reasons adequately explained its conclusion. The claimant was dismissed two days before transfer; the relationship difficulty was ongoing; and the Tribunal found that the transferee did not want her to transfer. Those findings entitled the Tribunal to conclude that transfer was the reason for dismissal.

• Employment Appeal Tribunal: appeal dismissed: [2017] UKEAT 0131_17_1710.

• Employment Tribunal: held that the claimant had not objected to transfer, that her contract transferred, and that she was unfairly dismissed.