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9 July 2012
Employment Appeal Tribunal
HHJ McMullen QC
Dismissals and re-engagement following a TUPE transfer in order to harmonise terms and conditions of employment are automatically unfair; and the remedy could be re-engagement on the original terms of employment, even if the employees have accepted the new terms.
The College successfully bid for Offender Learning Contracts from the Learning and Skills Council. On discovering costs they had not previously appreciated, they sought to save costs by harmonizing terms and conditions of employment. The employees did not agree, so they were dismissed and offered re-engagement on revised terms. The employees accepted the new terms but brought proceedings for unfair dismissal.
The reason for the dismissal was connected with the transfer. It was not for an ‘economic, technical or organizational reason entailing changes in the workforce'. The dismissals were therefore automatically unfair. The tribunal, upheld by the EAT, ordered re-engagement on the original terms.
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The status of employment rights on the transfer of an undertaking is an extremely complex area of...