Under TUPE, a dismissal is automatically unfair if the transfer is the sole or principal reason for it. In Hare Wines Ltd v Kaur, the employer claimed that a difficult working relationship between an employee and a director of the transferee company meant that the transfer was not the reason for the employee's dismissal. The Court of Appeal rejected that argument.
There was a TUPE transfer between H&W Wholesale and Hare Wines Ltd. All the H&W employees transferred except Mrs Kaur, who was dismissed. H&W and Hare Wines argued that she had objected to being transferred because of a difficult working relationship with a colleague who was to become a director of Hare Wines. The employment tribunal and EAT rejected that argument, finding that it was Hare Wines' concerns about the on-going working relationship that led to the dismissal. The reason for the dismissal was the transfer and the dismissal was automatically unfair.
The Court of Appeal rejected the employers' appeal. They faced a number of obstacles in persuading the Court to overturn the tribunal's finding:
- The tribunal rejected evidence that the employee had objected to being transferred;
- The proximity of the dismissal to the transfer was strong evidence in her favour; and
- As no action had been taken to address the poor working relationship before the transfer, there was a strong inference that it was the transfer, rather than the poor relationship in isolation, that resulted in the dismissal.
Once the tribunal found that the employee had not objected to being transferred, it essentially had to decide whether she was dismissed because of her poor working relationship with the colleague (irrespective of the transfer), or whether the transferee did not want her because of that poor working relationship. The tribunal was entitled to find that Hare Wines anticipated on-going difficulties in the working relationship and decided as a result that it did not want her employment to transfer. It was the transfer that made the difference between the problems in the working relationship being tolerable and not.