Hare Wines Ltd v Kaur & Anor

Under TUPE 2006, a dismissal may be automatically unfair where the transfer is the sole or principal reason, even though a personal difficulty explains why a particular employee was selected. There is no separate category of purely personal reasons.

The question is what operated on the employer’s mind. A pre-existing problem may become a reason for dismissal because the transfer changes the employment context. The transfer is then more than the occasion for dismissal. Proximity to the transfer is not conclusive, but is often strong evidence. Whether the transfer or the personal difficulty was the principal reason remains a question of fact for the tribunal.

Mrs Satwant Kaur was employed by H&W Wholesale Ltd. On 9 December 2014, its business transferred as a going concern to Hare Wines Ltd. Mrs Kaur was dismissed that day. The Employment Tribunal found that she had not objected to the transfer, that her employment transferred under regulation 4(1) of TUPE 2006, and that she had been automatically unfairly dismissed because the transfer was the reason for dismissal. It also awarded notice pay.

Hare Wines Ltd appealed to the Employment Appeal Tribunal, arguing that the dismissal was caused by Mrs Kaur’s difficult relationship with a colleague and that the transfer was merely the occasion for it. Choudhury J dismissed the appeal in UKEAT/0131/17/JOJ. The central issue before the Court of Appeal was whether the transfer, rather than the personal difficulty alone, was the sole or principal reason for dismissal, and whether the Employment Tribunal had given adequate reasons.

1. Appeal dismissed. The Employment Tribunal had found that Mrs Kaur did not object to the transfer and that her contract transferred under regulation 4(1) of TUPE 2006. Those factual findings, including its assessment of credibility, could not be challenged on appeal.
2. Under regulation 7(1), dismissal is automatically unfair where the transfer is the sole or principal reason. The ETO qualification in regulation 7(2) was not engaged because no economic, technical or organisational reason was advanced. A reason personal to the employee does not defeat the claim. TUPE recognises no separate category of purely personal dismissals.
3. The reason for dismissal is the set of facts operating on the employer’s mind. The court relied on Kuzel v Roche Products Ltd [2008] ICR 799 and the exposition in Abernethy v Mott, Hay and Anderson [1974] ICR 323. The pre-existing difficulties between Mrs Kaur and Mr Chatha had continued for some time without dismissal. The transfer, however, would place Mr Chatha in a new management role, and the transferee did not want Mrs Kaur to transfer. The transfer therefore made the difference between the difficulties being tolerated and being treated as a reason for dismissal.
4. Proximity to the transfer was not conclusive, but was strong evidence in Mrs Kaur’s favour, as explained in Bork [1989] IRLR 41. Whether the transfer or the personal difficulty was the sole or principal reason was a question of fact. The Employment Tribunal was entitled to prefer the transfer explanation.
5. The dicta discussed in Smith v Trustees of Brooklands College UKEAT/0128/11/ZT did not establish a general but-for test in TUPE cases. The Employment Tribunal’s concise reasoning was nevertheless Meek-compliant, applying Meek v City of Birmingham District Council [1987] IRLR 250. The appeal was dismissed. Under CPR 52.19, no costs were recoverable by either party in the Court of Appeal.

1. Court of Appeal (Civil Division): dismissed Hare Wines Ltd’s appeal and upheld the findings of automatic unfair dismissal and breach of contract. No costs were recoverable by either party under CPR 52.19.
2. Employment Appeal Tribunal: Choudhury J dismissed the appeal by reserved judgment dated 8 February 2018 in UKEAT/0131/17/JOJ.
3. Employment Tribunal: EJ Russell found that Mrs Kaur had not objected to the transfer, that her contract transferred to Hare Wines Ltd, and that she had been automatically unfairly dismissed. Remedy awards totalled £16,401.38.