Who should a claim be brought against?

A claim for unfair dismissal is normally brought against the transferee, even if the employee does not transfer. This is because liability for an automatically unfair dismissal will transfer to the new employer. However, if the employee was unfairly dismissed before the transfer and the dismissal is governed by general unfair dismissal law, either because:

• there is a valid ETO reason but the dismissal has been carried out unfairly; or

• the dismissal was for a reason unrelated to the transfer;

The claim should be brought against the transferor.

If there is any doubt, it is sensible to claim against both employers and leave the tribunal to decide. In any event, careful legal advice must be taken before issuing any claim.