6. UNFAIR DISMISSAL RIGHTS

Dismissals in the context of a TUPE transfer are subject to the general law of unfair dismissal and redundancy. In addition, Regulation 7 of TUPE provides extra protection.

Important changes to Regulation 7 have been made by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (the 2014 Regulations). These changes affect all dismissals where:

• the transfer takes place on or after 31 January 2014; and

• notice of dismissal is given by the employer on or after 31 January 2014, or if no notice is given, the effective date of termination (EDT) of the employment is on or after 31 January 2014.

The general effect of these changes, especially when viewed against the backdrop of the introduction of tribunal fees to claim unfair dismissal from 29 July 2013, is to make it easier and faster to dismiss employees in the context of a TUPE transfer.

Under Regulation 7 (as amended by the 2014 Regulations):

• an employee will be automatically unfairly dismissed if the reason for the dismissal is the transfer (Regulation 7(1));

• protection against unfair dismissal applies to dismissals before or after the transfer, whether carried out by transferor or transferee;

• a dismissal is not automatically unfair if it takes place for an economic, technical or organisational reason entailing changes in the workforce (an ETO reason) (Regulation 7(2));

• if the cause or main cause of the dismissal is an ETO reason, the dismissal will be fair as long as the employer:

• acted reasonably in dismissing for that reason; and

• met all the requirements of the general law on unfair dismissal.

• a dismissal for a valid ETO reason will either be for:

• redundancy (section 98(2)(c) Employment Rights Act 1996); or

• “some other substantial reason” (section 98(4) ERA 96);

• if the dismissal is for redundancy, the usual redundancy arrangements and rules will apply;

• the phrase “changes to the workforce” now includes changes to the place where the employee is employed (Regulation 7 (3A) TUPE). Changes to “place” mean the same as under ordinary redundancy law (section 139 ERA 96);

• TUPE does not prevent fair dismissals for a reason unrelated to the transfer, for example misconduct;

• a claim for unfair dismissal under TUPE requires two years’ continuous service.