Gary Lewis v Dow Silicones UK Limited

Where a transfer occasions a substantial detrimental change in working conditions, an employee has a sufficient evidential basis to contend that the transfer was the sole or principal reason for dismissal. The employer must establish its actual reason for requiring the change.

An Employment Tribunal cannot uphold an alternative reason which was neither adequately pleaded nor supported by evidence of what was in the employer’s mind at the time. If no non-transfer reason, including an economic, technical or organisational reason, is established, the dismissal is automatically unfair under regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The claimant’s employment transferred when the respondent insourced operations and maintenance at a heat and power plant. He resigned after the respondent proposed compulsory standby and call-out duties and new Safe Work Permit responsibilities.

In an earlier appeal, the EAT held that these changes were substantial changes in working conditions to the claimant’s material detriment under regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006. It remitted the unfair-dismissal complaint.

The remitted Employment Tribunal dismissed the complaint. It found that safety and operational concerns, rather than the transfer, were the sole or principal reason for the changes and constituted an ETO reason. The claimant appealed. The central issue was whether that finding was open on the pleaded case and evidence.

1. Appeal allowed. The Employment Tribunal erred in finding that safety and the continuous operation of the plant were the sole or principal reason for the claimant’s dismissal. That case had not been pleaded by the respondent. It was also unsupported by the binding findings from the first tribunal hearing and by evidence of the respondent’s decision-makers’ reasons.

2. Under regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the reason for dismissal is the set of facts operating on the employer’s mind. Applying Kuzel v Roche Products Ltd, the employer must prove the reason it relies upon. The claimant’s answers in cross-examination about his own later safety concerns could not establish the respondent’s contemporaneous reason for insisting on detrimental changes.

3. A finding under regulation 4(9) that the transfer involved a substantial detrimental change does not invariably mean that the transfer was the sole or principal reason for dismissal. The statutory scheme permits an ETO reason. Nevertheless, where the transfer occasions the change, the claimant has raised a sufficient basis for a transfer-reason case. The respondent must then establish a different reason on evidence.

4. There was no proper basis for the tribunal’s safety finding. The respondent therefore failed to establish either a sole or principal reason other than the transfer or an ETO reason under regulation 7(2). The only possible outcome was that the transfer was the sole or principal reason for dismissal. The dismissal was automatically unfair.

5. The EAT substituted that conclusion and remitted remedy to a newly constituted Employment Tribunal. It additionally stated that, even if an ETO reason had been available, dismissal would have been unfair because there had been no consultation about a health-and-safety reason.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, substituted a finding of automatic unfair dismissal, and remitted remedy to a new Employment Tribunal: [2024] EAT 51.
• Employment Tribunal: On remission, dismissed the unfair-dismissal complaint after finding a safety-based ETO reason and a fair dismissal.
• Employment Appeal Tribunal: Allowed the claimant’s first appeal, substituted a finding that regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 applied, and remitted the unfair-dismissal complaint: UKEAT/0155/20/LA (V).
• Employment Tribunal: Initially dismissed the claim in a judgment sent to the parties on 24 December 2019.