The EAT decision in The Manchester College v Hazel is another reminder of how difficult it can be for an employer to harmonise terms and conditions of employment following a TUPE transfer.
The claimants transferred to the employer in 2009, along with around 1500 other employees. After the transfer the College employed around 3,500 staff on 37 different sets of terms and conditions of employment providing offender learning services. When it became clear that the services were not economically viable, around 300 redundancies were proposed, alongside a programme of harmonising terms and conditions of remaining staff. The claimants refused to accept the new terms, because they involved a pay cut. They were dismissed and re-hired on the new terms and conditions and brought unfair dismissal claims.
The dismissals were found to be automatically unfair. They were for a reason connected with the transfer but the College could not show that they were for an economic, technical or organisational reason entailing changes in the workforce. This was because the claimants' dismissals did not involve a change in employee numbers or functions. The fact that redundancies had taken place at about the same time did not alter that analysis. It was clear that by the time of the claimants' dismissals the redundancy exercise had come to an end and a process of harmonising terms and conditions had begun. The tribunal was entitled to order re-engagement, meaning that the claimants continued to be employed on the new terms and conditions but with their (higher) pre-dismissal salaries preserved.