The Claimant was dismissed by the Appellant immediately prior to a TUPE transfer from the Appellant to a third party. He brought a claim for unfair dismissal against the Appellant alone in which he claimed that his dismissal was unfair in terms of Regulation 7(1) of TUPE. The Appellant conceded that the dismissal of the Claimant was by reason of the transfer and was unfair. Following a remedies hearing, the Employment Tribunal concluded that it would be reasonably practicable for the third party to re-engage the Claimant. It further concluded that the third party was a ‘successor of the employer’ in terms of sections 115, 116 and 235 of the Employment Rights Act, 1996 (‘ERA’) and ordered the Appellant to re-engage the Claimant with the third party. The Appellant appealed, inter alia on the ground that the Tribunal had failed to consider whether or not it would be reasonably practicable for the Appellant to comply with that order.
Held: Appeal allowed and case remitted to a different Tribunal. The correct interpretation and application of section 116(3)(b) ERA required the Tribunal, before making a re-engagement order against the Appellant, to consider whether or not it was practicable for the Appellant to comply with that order. The Tribunal had not done so.
The Tribunal had also failed correctly to apply Regulation 4 of TUPE in determining which party bore the liability for an automatically unfair dismissal in terms of Regulation 7(1), and had misdirected itself as to the applicability of the ‘successor employer’ provisions of section 115, 116 and 235 ERA.
Citations:
[2021] UKEAT 0013 – 20 – 1602
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 November 2022; Ref: scu.661694
