News & Publications

Read more
Back to news

Sole or principle reason test within TUPE

Following the implementation of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 on 31st January 2014, a ‘TUPE dismissal’ will only be automatically unfair if the ‘sole or principal reason’ for the dismissal was the transfer.

The protection from dismissal no longer expressly extends to those dismissed for a reason ‘connected with’ the transfer.

However, in Bowman v Tote (Successor Company) Limited & Done Brothers (Cash Betting) Limited, the Employment Tribunal sitting in Liverpool found that Regulation 7(1), as amended, ought to be interpreted in accordance with the purpose of Article 4(1) of the Acquired Rights Directive.

Diarmuid Bunting, instructed by Legatus Law, represented the Claimant.  He referred the Tribunal to British Fuels Ltd v Baxendale & another [1998] ICR 1141, in which the House of Lords considered the extent to which a variation of contract could be solely or principally by reason of the transfer.

The panel upheld the claim, accepting the submission that, applying the logic in British Fuels to dismissals, if the dismissal was caused by or substantially contributed to by the transfer itself, the reason could be found to be the transfer.

Perhaps the apparent narrowing of Regulation 7 is not as significant as it may have appeared?