Employees benefit from various special protections when their employment transfers to a new employer because of a TUPE transfer. In particular, most of the employee’s employment terms are preserved on transfer, and the ability of the new employer to make changes to those terms is restricted. Further, if the transfer involves or would involve a substantial change in the working conditions of the employee, which is to their material detriment, the employee has the right to treat themselves as having been dismissed by the employer and to claim unfair dismissal. The EAT has recently considered whether post-transfer changes to an employee’s contract amounted to a substantial change in his working conditions which were to the employee’s material detriment.
L, an operations technician at a powerplant in Wales, was TUPE transferred into DSUK’s employment in March 2017. Most of L’s existing terms and conditions of employment were preserved at the point of transfer. However, shortly after the transfer, DSUK sought to introduce changes to some of L’s terms and conditions. These included changes to the standby/call out arrangements and the responsibility for issuing safe work permits. L resigned and claimed that he had been constructively dismissed. L argued: (a) that the changes to his terms involved a substantial change in his working conditions to his material detriment; and (b) that his dismissal was automatically unfair because the sole or principal reason for the dismissal was the TUPE transfer.
An employment tribunal dismissed L’s claim. However, on appeal, the EAT overturned this decision and held that the post-transfer changes to L’s terms involved a substantial change in working conditions to his material detriment. The remainder of L’s claim was sent back to be head by a new tribunal.
The second employment tribunal again dismissed L’s claim, this time on the basis that that TUPE transfer was neither the sole or principal reason for L’s dismissal. The second tribunal held that, although there was a temporal proximity between the changes and the date of transfer, the principal reason for the changes to the working conditions was not the transfer itself, but rather DSUK’s need to quickly address pre-existing issues within the powerplant (which was a permitted economic, organisational or technical reason to make changes).
L appealed for a second time and the EAT again upheld his appeal and overturned the second tribunal’s decision. The second tribunal had erred in law when it found that L had been fairly dismissed for a reason that the employer had not itself relied on. The only possible outcome based on DSUK’s pleaded case and the evidence before the tribunal was that the sole or principal reason for L’s dismissal was the TUPE transfer itself, and so L’s dismissal was automatically unfair.
In reaching its decision, the second EAT noted that case law has established that an employer can successfully appeal if an employment tribunal upholds a claim that a claimant has not pleaded in their claim form. This same principle should apply in reverse because “what’s sauce for the goose is sauce for the gander”. The EAT also noted that a respondent, particularly if professionally represented, is expected to draft its response clearly so that the claimant knows the basis of any defence it is relying on.
Lewis -v- Dow Silicones Ltd [2024] EAT 51
For further details on our employment law services, please contact us or a member of our employment law team.
For further information, please contact:
Emma Ahmed, Hill Dickinson
emma.ahmed@hilldickinson.com
