Reading Time: 2 minutes Coventry law firm is building on plans for its long-term future by investing in a group of apprentices.
Reading Time: 4 minutes Homeowners, estate agents and solicitors up and down the country are wondering whether to expect the traditional upsurge in the property market in April and May.
Reading Time: 2 minutes Coventry residents urged to check eligibility for LPA refund
Reading Time: 2 minutes An illegal waste wood stockpile on land in Devon has seen the landowner prosecuted and left with the clean-up bill after being held responsible for knowingly permitting the tenants’ activities.
Employee dismissed over Facebook comments awarded £5,376
A company had not acted unfairly when it dismissed an employee for gross misconduct after he made offensive comments about the managing director on Facebook.
However, the employee’s behaviour had not been so bad that it warranted dismissal without any notice pay so he was entitled to compensation.
The tribunal heard that the employee became angry when the company’s Christmas bonuses were reduced in value due to financial restraints. He began posting offensive comments about the managing director.
The employee apologised for the comments at a disciplinary hearing and said that, at the age of 55, he was embarrassed and regretted what he had done.
The company said the comments had been “extremely derogatory” and dismissed him for gross misconduct without notice or pay in lieu of notice.
The Employment Tribunal rejected the employee’s claim of unfair dismissal but ruled that although offensive, his actions had not reached the “high hurdle” required to prove “gross misconduct” and so did not justify dismissal without notice.
The employee was awarded £5,376 compensation.
Workers should have received statement of rights after one month
The Employment Appeal Tribunal has ruled that a hotel worker is entitled to compensation because her employer failed to give her a statement of rights after one month of employment.
The case involved three Polish workers who were dismissed after they complained about “persistent shortfalls in their wages, late payment and a falsification of their wage slips”.
Section 1 of the Employment Rights Act 1996 (ERA) requires that an employer should provide employees with a statement on the terms and conditions of work within two months of beginning employment.
However, none of the workers in this case were given such a statement.
The Employment Tribunal at the first hearing held that two of the workers were automatically unfairly dismissed and awarded them four weeks’ pay in compensation.
However, it ruled the third worker had only been employed for six weeks and so the employer had not breached the regulations because the two-month time limit had not been reached.
The Employment Appeal Tribunal has overturned that decision. Judge Stacey held that the obligation “to provide the statement continues for employees with one month or more service, whether or not the employment relationship is ended in its second month.
“It does not follow from the flexibility afforded to an employer by section 1(2) as to when the statement of initial employment particulars must be provided, that there is no requirement to provide a statement if the contract ends within two months.”
Judge Stacey added the following advice to employers: “It goes without saying that whilst sections 1, 2 and 198 ERA 1996 represent the minimum floor of legal rights, it is best practice for the written particulars to be provided as soon as possible to protect both parties and in order to minimise risk of ambiguity or misunderstanding of the terms agreed that form the contractual basis of the employment relationship.”
The case was remitted to the Employment Tribunal to decide whether the employee should receive two or four weeks’ pay in compensation.
A separate claim of race discrimination involving all three workers, which was dismissed by the Employment Tribunal, was remitted back to be heard by a fresh tribunal.
Security guard was unfairly dismissed after submitting grievance letter
The dismissal of a security guard after he submitted a grievance letter on behalf of work colleagues has been ruled unfair by the Employment Tribunal.
The case involved an employee who worked for an NHS Trust.
In 2016, the employee emailed the trust’s chief nurse saying that security officers “had lost trust in management” over various issues. He was told by the HR department that he “should not go straight to executive officers but should use the appropriate workforce policy”.
The employee and the other officers then consulted their trade union and raised a collective grievance. It was written by the employee and signed by six other officers.
The trust instructed an independent HR company to investigate the grievance. During the investigation, all the officers except the employee withdrew from the grievance procedure.
Following further internal investigations, a manager in the case concluded that the collective grievance “had been submitted in bad faith and should be considered as a disciplinary matter”.
The employee was later dismissed after a disciplinary hearing concluded that his actions had amounted to gross misconduct.
He brought a claim to the Employment Tribunal, which ruled in his favour. It held that he was unfairly dismissed because the trust’s actions were “outside the range of what was reasonable in terms of investigation, grounds for belief and procedure”.
During the investigation about the allegation that he was acting in bad faith, he was not asked in any depth about the claims or shown notes of interviews with other people involved, nor was he asked for his version of events.
Despite these failings, the investigator went on to recommend the disciplinary proceedings that led to the unfair dismissal.
The employee was awarded £10,990 compensation.
SMEs won’t be forced to disclose their gender pay gap
The government has confirmed that small and medium-sized enterprises will not be obliged to reveal their gender pay gap.
Currently, business employing more than 250 people must publish the pay differential between men and women. It’s part of an ongoing strategy to equalise salaries and eradicate discrimination.
Following a review, the Business, Energy and Industrial Strategy (BEIS) select committee recommended that the requirement should be extended to businesses with 50 or more employees.
In its response, the government has urged smaller companies to publish the information voluntarily but has stopped short of making it a legal requirement. It said: “Given the range of metrics required, it was felt that reporting could be particularly burdensome for small and medium sized businesses and so the requirement should be restricted to large employers.”
The government also rejected the committee’s recommendation that organisations should be obliged to publish an action plan stating how they would close the gender pay gap.
“While the Government urges all employers to produce an action plan alongside their figures, we were aware that including it as a mandatory requirement might result in a prescriptive format with limited value to employers and employees.
“By not making them mandatory, we have given employers the freedom to produce an action plan that is relevant to their individual situation which they can truly commit to and embrace.”
Although such action plans are not mandatory, the government statement was clear that companies ought to produce them and do everything possible to reduce pay inequality. “We have been clear that employers must take action to close the gender pay gap in their organisation, beyond reporting.
“Drafting an effective action plan is crucial to this. We estimate that approximately 48% of employers have published action plans alongside their figures in the first year of reporting.”
Food supplier prevents former employee soliciting its customers
A food supplier has been granted an injunction to prevent a former employee from soliciting its customers for a rival business.
The former employee had worked as the employer’s marketing manager. There was a non-solicitation clause in his employment contract prohibiting him from soliciting any business from the supplier’s current or potential customers for a 12-month period after termination of his employment.
There was also a non-competition clause prohibiting him from competing with the supplier’s business during his employment and for 12-months post-termination.
The employee left the supplier to work for a rival company. The supplier took legal action to enforce the post-termination restrictions. It sought an interim injunction pending trial.
In giving its judgment, the court said post-termination restraints that were reasonable in terms of space or time were likely to be enforced. It was for the employer to show that a restraint was reasonable for protecting its interest, such as confidential information and customer lists: the right did not extend to mere potential customers.
Non-solicitation clauses were more favourably looked on than non-competition clauses because an employer was not entitled to protect itself against mere competition on the part of a former employee.
The court therefore granted the injunction in relation to the non-solicitation clause. However, it declined to enforce the non-competition clause because it was wider than reasonably necessary to protect the supplier’s confidential information or trade connections.
The leader of a Coventry-based childhood cancer charity has thanked one of the city’s law firms for helping them to overcome the most difficult year in their history.
This time last year Shine A Light Support Service – which supports families affected by childhood cancer – had to leave Coventry Point with no initial alternative accommodation.
Charity founder Sam Schoolar eventually found new premises at the Koco Community Centre at Spon End, and joined forces with Band Hatton Button who adopted Shine A Light as their charity partner for 2018, which went on to raise more than £12,500 throughout the year.
“The donations from Band Hatton Button has quadrupled the annual income we are used to, and without that money it has given us the confidence to move forward from what was a very bleak situation,” said Sam.
“Without those funds we would have been looking at a very different future, but we now have two spaces at the Koco Community Centre where we support around 40 families a month.
“We have a play area for children and a café area for parents which means we can lay on coffee mornings and introduce structured play activities.
“We also have a separate space for private counselling which means we can provide a useful, rounded service for people who are doing through some of their darkest days.
“We’ve seen a big spike in enquiries for our services over the last couple of months – driven by word of mouth and referrals from hospitals – so we are appealing for as many donations as possible to help us keep up with demand.
“The two most popular services are the counselling and the trips that we do because that’s when families can socialise with others who have gone through similar experiences to them.
“We are also introducing some academic sessions for youngsters who can learn about coding and how to create their own game or website – it’s something different that helps to take their minds off what they are going through.”
Over the past year Band Hatton Button has hosted a charity ball, taken part in the Lake District Six Peaks Challenge and organised a quiz night in conjunction with the Rotary Club of Kenilworth to raise funds, with staff also helping to decorate the charity’s new base.
Sarah Jordan, Head of Marketing and Client Relations at Band Hatton Button, added: “This has been one of the most rewarding years for us as a firm having seen the difference that our fundraising has made.
“We’re hoping news of Shine A Light’s revival will inspire other businesses to reach out and help them grow further – they provide an invaluable support to families who are going through extreme difficulty.”
For more information about Shine A Light, visit www.shinealightss.org.uk.
Photo caption: From left, Jonathan Miller (Rotary Club of Kenilworth), Dina Parmar (Band Hatton Button), Kristy Ainge (Band Hatton Button) and Sam Schoolar (Shine A Light Support Service).
For more information contact Adam Manning:
Government unveils its Good Work Plan to upgrade employment rights
The government has unveiled what it describes as the “largest upgrade in a generation to workplace rights”.
Ministers say the extensive new measures contained in its Good Work Plan will give businesses greater clarity on their obligations and ensure the enforcement system is fair and fit for purpose.
The new legislation will close a loophole by repealing the Swedish derogation – which currently allows agency workers to be employed on cheaper rates than permanent counterparts.
It will also extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and details of other types of paid leave, such as maternity and paternity leave.
The maximum employment tribunal fines for employers who have shown malice, spite or gross oversight will quadruple from £5,000 to £20,000
The government will also extend the holiday pay reference period from 12 to 52 weeks, ensuring those in seasonal or atypical roles get the paid time off to which they are entitled.
The measures are based on the findings of the independent Matthew Taylor review of the impact of modern working practices, with 51 of the 53 recommendations being implemented.
Other key changes include:
- ensuring tips left for workers go to them in full
- ensuring workers are paid fairly by providing agency workers with a key facts page when they start work, including a clear breakdown of who pays them, and any costs or charges deducted from their wages
- enforcing vulnerable workers’ holiday pay for the first time
- introducing a list of day-one rights including holiday and sick pay entitlements and a new right to a payslip for all workers, including casual and zero-hour workers
- introducing a right for all workers, not just zero-hour and agency, to request a more predictable and stable contract, providing more financial security for those on flexible contracts
- introducing a new naming scheme for employers who fail to pay employment tribunal awards
- taking further action to ensure unpaid interns are not doing the job of a worker.
Ministers say they want to reflect the reality of the modern working relationships as expressed by the Taylor review.
This means acknowledging that banning zero hours contracts in their totality would negatively impact more people than it helped, and that the flexibility of ‘gig working’ is not incompatible with ensuring atypical workers have access to employment and social security protections.
Supermarket’s dismissal of diabetic over incontinence incident ruled unfair
A supermarket acted unfairly when it dismissed a lorry driver with diabetes after he had urinated in a delivery yard due to urge incontinence.
That was the decision of the Employment Tribunal in an unusual case relating to disability discrimination.
The driver suffered from type 2 diabetes. One of the symptoms of that condition was urge incontinence (a sudden and urgent need to empty the bladder). On arrival at one of the supermarket’s depots, the driver had suffered a sudden need to urinate.
Fearing that he would not reach the toilet in time, he used the delivery yard. He was dismissed for gross misconduct and breach of health and safety policies and regulations.
The supermarket did not specify what the policy and regulations were and did not seek any medical evidence.
The driver appealed and produced medical evidence that supported his case, but the supermarket upheld his dismissal.
The Employment Tribunal concluded that the supermarket’s investigation was inadequate and was not within the band of reasonable responses. It held that the dismissal was unfavourable treatment arising from the driver’s disability within the terms of the Equality Act 2010.
It ordered the supermarket to reinstate him and awarded him compensation.
The supermarket appealed, saying the tribunal’s conclusions could not stand in the light of CCTV footage showing that the driver had urinated on pallets of trays used for the delivery of food.
The Employment Appeal Tribunal also ruled in favour of the driver. It held that the CCTV was inconclusive, yet the supermarket leapt to conclusions about unnamed and unspecified health and safety regulations. The operative cause of the driver’s dismissal was disability rather than misconduct.
The lack of any reasonable investigation was a critical issue in the tribunal’s ultimate decision that the dismissal was unfair.
Uber to fight on after losing appeal over ‘drivers are workers’
Uber says it will continue its legal fight against the ruling that its drivers should be classed as workers.
It made the statement after the Court of Appeal upheld an Employment Tribunal decision in 2016 that drivers were entitled to workers’ rights including the minimum wage.
The tribunal at the original hearing heard that Uber paid drivers weekly, based on the fares charged for trips undertaken, less a service fee for the use of its booking app.
Uber argued that it was merely acting as an agent and that drivers entered into binding agreements with passengers to provide them with transportation services.
The Employment Tribunal ruled against Uber. It concluded that any driver who had the app switched on and was within the territory in which he was authorised to work, and was willing to accept assignments, was working for Uber under a “worker” contract.
It held that any supposed contract between driver and passenger was a pure fiction, bearing no relation to the real dealings and relationships between the parties.
Both the Employment Appeal Tribunal and the Court of Appeal have upheld that decision.
Uber says it will now take its case to the Supreme Court, arguing that most drivers had been self-employed before its app existed. A spokesperson said: “Drivers who use the Uber app make more than the London living wage and want to keep the freedom to choose if, when and where they drive.”
Employee who stole fails with disability discrimination claim
The law provides wide-ranging protection against disability discrimination but that does not extend to employees who’ve been found guilty of stealing.
This was illustrated in a recent case involving an employee who worked for a County Council.
The employee was found to have taken some items from a shop without paying. He was accused of shoplifting and served with a fixed penalty notice.
The council dismissed him following the incident, so he brought a claim of disability discrimination. He claimed the shoplifting incident happened because he was suffering from post-traumatic stress disorder and dissociative amnesia (PTSD).
The council accepted that his illness amounted to a disability but pointed to the fact that stealing was excluded from protection under Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010.
The Employment Tribunal found in favour of the council. It held that the employee’s claim of disability discrimination had to fail because a tendency to steal was excluded from the Regulations as a protected condition.
The Employment Appeal Tribunal upheld that decision.
A branding challenge toppled the golden arches when a small Irish fast food company managed to block the international McDonald’s food chain from trademarking the terms Big Mac and Mc throughout Europe.
The European Union Intellectual Property Office ruled that McDonald’s had not been able to prove genuine use of the name Big Mac as either a burger or restaurant name, and that the trademark they registered back in 1996 should be cancelled.
The judgement opens the door to expansion for Galway-based Supermac as it will be able to register its brand as a trademark in the UK and Europe. McDonald’s had used the brand name’s similarity to Big Mac as a reason to block previous expansion outside Ireland, even though the Supermac company name had been based on the founder’s nickname when the food chain was established in 1978.
Said commercial expert Sean Byrne of Coventry town solicitors: “This was a real David and Goliath case and demonstrates how important it is to protect your brand whatever your company size. It is also a good example of why you need to look ahead and anticipate where your company may go in future. If Supermac had registered their trade mark in other jurisdictions when they started out, they would have been in a stronger position when McDonald’s came along.”
The ruling in the case coincided with changes to UK trade mark law which came into force recently (14 January 2019) which saw amendments introduced to the Trade Mark Act 1994 as a result of the new EU Trade Marks Directive 2015/2436/EU.
The Directive is focused on harmonising the law at national level across member states and offers brand owners new ways to fight counterfeiting and misuse of trade marks within company names, as well as introducing new procedures for registration, renewal and restoration.
Some of the key changes are:
- Marks can be represented in forms other than graphically, allowing online filing in electronic formats, so that sounds, multimedia, animation or holograms may all be registered. A graphical representation will still be required for registration under the international Madrid system
- Technical function restrictions have been extended, so these apply not only to shape, but also to any other characteristic which performs a purely technical function
- The Intellectual Property Office will no longer notify applicants if any conflicting trade mark has expired at the date of filing, meaning applicants need to conduct searches themselves for any trade mark that has expired less than a year before their application, as these could be restored or renewed
- Proof of use, which may be used in any opposition proceedings, will no longer be effective from the date of publication but will instead be counted from the date of filing, which will need to be borne in mind when counting down for the challenge on the five-year period for non-use
- When owners believe counterfeit goods are being exported bearing their trade mark, they will no longer have to prove they are the right holder in order to detain the goods; instead, the burden of proof will be with the exporter to show that the holder does not own the right
- Owners will have extended rights to act against those producing packaging, labels or other materials to be used on counterfeits, even where the producer is unaware that they are acting without authority
- Dictionary usage that identifies a trade mark as a generic term will be open to correction, including the option of a court order for amendment of a publication
- Easier rules for restoration of a lapsed trade mark will require applicants to demonstrate only that the failure to renew was unintentional, where previously a decision had to be made as to whether it was just to allow the renewal
- The ‘own name’ defence for use of an existing company’s name has been removed for company names, so in future this will be an infringing act and will be allowed only for personal names
Added Sean: “The amendments to UK law are mainly straightforward and many people will have come across them as they have already been implemented into EU Trade Mark Law.
“The one that may cause some controversy is the change to the own name defence as this is not being applied retrospectively, so we will have situations where long-standing companies continue to use a name that would fail under the new infringement provisions and we will have to see how the courts tackle this.”
A Coventry law firm is moving into larger premises in the city in line with its growth plans and to ensure the business is well placed for the future.
Band Hatton Button, which currently occupies 7,500 square feet of office space on Warwick Road, is making the move to Earlsdon Park on Butts Road to acquire 11,500 square feet of open-plan office space on a 15-year lease.
The move heralds a new era for Band Hatton Button, which has grown its workforce from 62 to 82 and increased its budget from £3.5 million to £4.5 million since forming in 2013 as a result of a merger between Varley Hibbs, Button Legal and Band Hatton.
Band Hatton Button are set to move into their new premises over Easter, and managing director Mark Moseley highlighted the significance of the move.
“This office move is laying the foundations for us to realise our long-term ambitions to grow – both organically and through acquisitions,” said Mark.
“We are nearing maximum capacity in our existing offices whereas the new space will enable us to grow our workforce to around 120 staff which has been our plan for some time.
“Extra office space is key for us as we are keen to attract new talent into the firm which will help us to diversify our client-facing services.
“We are particularly on the lookout for individuals with commercial expertise in the agriculture and construction sectors, which are going to be two big areas of focus for us over the coming months and years.
“We’ve enjoyed a successful journey of growth since the business’ merger in 2013, notably more recently with Coventry’s in-demand residential and commercial property markets, which is showing no signs of slowing down.
“We are in the heart of a city that is attracting more students than ever before, is at the forefront of developing driverless cars and is preparing to become UK City of Culture in 2021 – the future is bright for Coventry and we look forward to sharing in the city’s success.”
Theresa May wants ethnicity pay reporting to tackle discrimination
Prime Minister Theresa May has announced plans for a series of measures to remove the barriers facing ethnic minorities in the workplace
Mrs May has launched a consultation on ethnicity pay reporting in response to the recent Race Disparity Audit, which revealed significant disparities in the pay and progression of ethnic minority employees compared to their white counterparts.
In the first consultation of its kind, the government will invite employers to share their views on a mandatory approach to ethnicity pay reporting, since the number of organisations publishing information on the issue voluntarily remains low.
The consultation will run until January 2019.
Mrs May also wants to establish a pioneering Race at Work Charter, which will commit businesses to a set of principles and actions designed to drive forward a step-change in the recruitment and progression of ethnic minority employees.
Major organisations including NHS England, Standard Life Aberdeen, Norton Rose Fulbright, Saatchi & Saatchi, KPMG, RBS, the Civil Service and WPP are among the early signatories.
Mrs May said: “Every employee deserves the opportunity to progress and fulfil their potential in their chosen field, regardless of which background they are from, but too often ethnic minority employees feel they’re hitting a brick wall when it comes to career progression.
“That’s why I’m delighted to launch the Race at Work Charter, which gives businesses a clear set of actions to work towards in helping to create greater opportunities for ethnic minority employees at work.
“Our focus is now on making sure the UK’s organisations, boardrooms and senior management teams are truly reflective of the workplaces they manage, and the measures we are taking today will help employers identify the actions needed to create a fairer and more diverse workforce.”
Leading employment lawyers say the new measures could lead to a flood of tribunal claims relating to unequal pay and race discrimination.
Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.
Woman ‘side-lined’ during maternity leave wins discrimination claim
A compliance officer with an international bank who was “side-lined” after having a baby has won her claims of maternity and sex discrimination.
The employee joined the bank as a senior compliance advisor in 2012. By 2015 she was being considered as a possible candidate for head of department.
In 2016, she went on maternity leave and maternity cover was recruited to take her place until she returned. However, the employee claimed that her duties were really carried out by a colleague who was junior to her at that time.
While on maternity leave, the employee contacted the bank about attending a quarterly meeting but was “strongly discouraged” from doing so. She attended a meeting prior to her return expecting a formal handover to her, but no such handover took place.
When she returned to work, she felt that her position had been eroded. Her maternity cover had left as planned but the junior colleague was now carrying out much of her work. She complained that she was being marginalised.
An internal talent review again identified her as a potential department leader, but this time suggested she would be ready in two or three years.
The employee, who still works for the bank, brought claims of sex and maternity discrimination to the Employment Tribunal, which found in her favour.
It found that while she was on maternity leave, her junior colleague “had taken over nearly the entirety of her role”.
The Judge said: “When [the maternity cover] joined, rather than providing maternity cover by doing the Claimant’s job, she provided support, advice and supervision to [the junior colleague] who continued to essentially undertake the Claimant’s job.
“That is why there was no handover on the Claimant’s return. There was no real intention of [the junior colleague] handing back the work. Since the Claimant’s return, despite the protestations to the contrary, she and [the junior colleague] have been essentially at the same level.
“We find that the Claimant was side-lined on her return from maternity leave and her role was diminished. That is continuing, and we consider it is ongoing maternity discrimination.”
The tribunal also found that the employee had been subjected to sex discrimination because she was not fairly considered for the head of department role in 2015. She and another female candidate had been described as “divisive”. The term would not have been used about a man in similar circumstances and amounted to direct sex discrimination.
Company held liable for MD punching employee after works part
A company has been found liable for an assault by its managing director after a Christmas party that left an employee with brain damage.
The incident happened after the director organised and paid for a Christmas party for staff. After the party he arranged for taxis to take some of the attendees to a nearby hotel, where they were staying at the company’s expense.
They all continued drinking and a work-related discussion turned to a new member of staff, who was said to be receiving higher pay than others.
The director began to lecture his employees, and when challenged by a manager, he punched him twice. The second punch knocked the manager to the floor where he hit his head and sustained a serious brain injury.
The issue before the High Court was whether the company was vicariously liable for the director’s actions.
The judge found that it was not, because the hotel drinking session was entirely independent of the Christmas party and unconnected to the company’s business.
The manager appealed, saying that there was enough connection between the managing director’s position and his wrongful conduct to render the company liable under the principle of social justice.
The company argued that the director was a mere reveller at the hotel and was not acting within the course of his employment or his actual authority.
The Court of Appeal found in favour of the salesman. It held that the judge had been wrong to find that there was insufficient connection between the director’s field of activities and the assault.
The drinks occurred on the same evening as the work event paid for and orchestrated by the director. He was present as managing director. His managerial decision-making having been challenged, he took it upon himself to exercise authority over his subordinate employees by summoning them and expounding the extent and scope of his authority with the intention of quelling dissent.
Giving judgment, the Judge said that the director “was purporting to exercise his authority over his subordinates and was not merely one of a group of drunken revellers whose conversation had turned to work.
“He asserted his authority in the presence of around 50% of [the company’s] staff and misused that authority.”
The amount of compensation the salesman should receive is still being assessed.
Cashier sacked during TUPE process was unfairly dismissed
A cashier who was sacked by her firm while its business was being taken over by another company has won her claim of unfair dismissal.
The cashier worked for a company (the transferor) which specialised in selling wine and beer.
It got into difficulties in December 2014 so another company (the transferee) agreed to purchase stock and take on any employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), which preserve an employee’s terms and conditions when a business is transferred to a new owner.
The transferee then assumed responsibility for all employees except the cashier, who was dismissed by the transferor two days before the transfer took place. The dismissal letter said: “I am sorry to inform you that due to unforeseen circumstances concerning the business, we must inform you that our business will now cease to trade. As a result, we will unfortunately have to terminate your employment as from today.”
The cashier brought a claim to the Employment Tribunal, alleging that the reason for her dismissal was the transfer of the business, which meant it was unfair under TUPE regulations. She said the transferee did not want her to work for them because she had a strained relationship with one of her colleagues.
The transferee’s defence was based on a meeting on 9 December in which it said that the cashier had objected to the transfer and therefore under TUPE, her claim of unfair dismissal was not valid.
The tribunal found in favour of the cashier. It said it preferred her evidence that the transferee anticipated there would be ongoing difficulties in her working relationship with a colleague.
The Judge said: “It is for this reason that the Claimant was the only employee told that she was not wanted. She did not object to the transfer. The reason for the dismissal was the transfer. As such her contract of employment transferred and she was unfairly dismissed.”
The Employment Appeal Tribunal has upheld that decision.
The case is a timely reminder that businesses cannot use transfers as an opportunity to dismiss employees they consider troublesome. TUPE offers significant protection and employers must ensure they follow the correct procedures to avoid costly claims and tribunal cases.