The EAT in Spaceright Europe Ltd v Ballavoine and another has followed the EAT’s decision in Harrison Bowden v Bowden in deciding that it was not necessary to identify a particular transferee in order to find that an employee had been automatically unfairly dismissed in the context of a TUPE transfer. It declined to follow the opposing EAT decision in Ibex Trading Co Ltd (in administration) v Walton and others which found that it was necessary that there should be an actual transferee in mind at the time of dismissal.
Mr Ballavoine was chief executive of Ultralon Holdings Limited which was placed into administration on 23 May 2008. Mr Ballavoine was dismissed the same day. On 25 June the business and assets of Ultralon were sold as a going concern to Spaceright. This sale constituted a ‘relevant transfer’ under TUPE. The EAT upheld the tribunal’s decision that Mr Ballavoine had been unfairly dismissed and that the sole or principal reason for his dismissal was a reason connected with the transfer which was not an economic, technical or organisational reason entailing changes in the workforce. The EAT considered the conflicting EAT decisions in Harrison Bowden and Ibex but preferred that in Harrison Bowden. It agreed with the EAT in that case that it is not of importance whether the transferee has actually been identified at or before the moment of dismissal.
Curiously, the EAT in this case appears to have indicated that it would be wrong to follow the Ibex decision even though one EAT decision cannot trump another. However, it is likely that, given that other cases have followed the reasoning in Harrison Bowden, this is the correct approach to follow.