No right to refuse to employ employees with a poor disciplinary record


Under TUPE, all those employed by the transferor immediately before the transfer automatically become employees of the transferee from the transfer date. A transferee cannot pick and choose which of the transferor’s employees to take on. In particular, transferees are not allowed to reject employees on the basis of a poor disciplinary or bad attendance record. Someone in this situation (provided they had two years’ service) would normally be entitled to treat themselves as dismissed and claim unfair dismissal against the transferee. 


TUPE does not prevent fair dismissals for a reason unconnected with the transfer, such as gross misconduct.