EAT TRANSFER OF UNDERTAKINGS
Economic technical or organisational reason
The Employment Tribunal erred in taking into account a perceived breach of the consultation requirements of Transfer of Undertakings (Protection of Employment) Regulations 2006 regulation 13(6) in determining that the dismissals of two sample Claimants were unfair within the meaning of Employment Rights Act 1996 section 98(4). No complaint of a breach of regulation 13(6) had been made by the Claimants nor did they have standing to do so. It was not raised in the course of the hearing and the Employment Tribunal did not invite submissions on the issue.
The Tribunal did not err in holding that the Claimants had been dismissed whether constructively or by application of Regulation 4(9).
The Employment Tribunal did not err in finding that the dismissals of the Claimants were for an organisational reason entailing changes in the workforce within the meaning of TUPE regulation 7(2). The changes affected a section of the workforce, the transferred employees. They did not have to affect the whole of the workforce to fall within regulation 7(2). Berriman v Delabole Slate Ltd [1985] ICR 546 considered. Appeal allowed. Case remitted to the same Employment Tribunal for consideration of whether the dismissals were fair or unfair within the meaning of section 98(4).
Citations:
[2010] UKEAT 0273 – 09 – 2707
Links:
Statutes:
Transfer of Undertakings (Protection of Employment) Regulations 2006 13(6), Employment Rights Act 1996 98(4)
Citing:
Considered – Berriman v Delabole Slate Ltd CA 1985
Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: ‘In our judgment, the only way in which the statutory requirements . . can be made to fit a case of . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 22 August 2022; Ref: scu.421393
