Employers should resist the temptation to use the occasion of a TUPE transfer to dismiss employees (with two years’ service and so eligible to claim unfair dismissal) with whom there is an ongoing performance or misconduct issue, as this is likely to be automatically unfair. The Court of Appeal has confirmed that an employee may be automatically unfairly dismissed by reason of a TUPE transfer even if the employer has some other, personal reason to dismiss but has chosen to act on it because of the transfer.
In Hare Wines v Kaur, the claimant had for some time had a poor working relationship with a colleague who was set to become a director of the transferee following a TUPE transfer, but no action had been taken to address that prior to the transfer. She was dismissed on the day of the transfer and it was the transfer that made the continuance of her employment and the poor working relationship intolerable. In these circumstances the tribunal had been entitled to rule that the transfer was the reason for dismissal.