EAT Transfer of Undertakings: Dismissal/Automatically Unfair Dismissal – UNFAIR DISMISSAL – Automatically unfair reasons
The Claimant was employed in a senior position by GSG, which went into administration. The administrators closed part of the business and transferred part to the Respondent. The Claimant had been employed in the transferred part of the business but was dismissed as redundant days before the transfer, which was admittedly a TUPE transfer.
His claim that he had been automatically unfairly dismissed for a reason connected with the transfer failed. On appeal, held:
1) The Employment Judge had failed to apply the principle in Kuzel v Roche [2008] IRLR 530 which applied to the claim in this case and had the effect that, once the Claimant had produced some evidence in support of his case, the burden lay on the Respondent to establish that the reason for the dismissal was not the automatically unfair reason. He had imposed on the Claimant a higher burden and had rejected his case on the basis that he had not discharged the evidential burden. See paragraphs 22 to 28.
2) However the facts were not so clear that the EAT could decide that if the burden of proof had been correctly applied, the Respondent must be taken to have failed to discharge it. There must be a remission; but that remission should be to the same Employment Judge, applying the Sinclair Roche criteria.
Spaceright Europe Ltd v Baillavoine [2012] ICR 520 and Hynd v Armstrong [2007] IRLR 338 in particular considered.
Jeffrey Burke QC HHJ
[2015] UKEAT 0276 – 13 – 1302
Bailii
England and Wales
Employment
Updated: 27 December 2021; Ref: scu.542628