Wendy Drake v Churchill Contract Services Ltd
[2024] EAT 88
Gary Lewis v Dow Silicones UK Limited
12 April 2024
[2024] EAT 51
Employment Appeal Tribunal
An employee was fired after his job transferred to a new company. The new company changed his job, and he claimed unfair dismissal. A judge agreed the changes were bad, but a second judge said the firing wasn't due to the company change but safety issues. A higher court disagreed, saying the second judge didn't have enough evidence. They ruled the employee was unfairly fired because of the company change.
Key Facts
- •Gary Lewis (Claimant) worked for Npower, then transferred to Dow Silicones UK Ltd (Respondent) via TUPE after a change of ownership.
- •Respondent introduced changes to standby/call-out and Safe Work Permit arrangements.
- •Claimant argued these changes were a substantial change to his working conditions to his material detriment (constructive dismissal under TUPE 2006 and/or ERA 1996).
- •Initial Employment Tribunal dismissed the claim.
- •Employment Appeal Tribunal (EAT) overturned the decision, finding the changes were a substantial detriment.
- •Remitted hearing found for the Respondent, stating the changes were not solely due to the TUPE transfer but were due to pre-existing problems and safety concerns.
- •Second appeal focuses on whether the Employment Tribunal's reasoning was permissible given the pleadings and evidence.
Legal Principles
TUPE 2006, Regulation 4(9): An employee can treat their contract as terminated if a relevant transfer involves a substantial change in working conditions to their material detriment.
TUPE 2006, Regulation 4(9)
TUPE 2006, Regulation 7(1): A dismissal is automatically unfair if the sole or principal reason is the transfer.
TUPE 2006, Regulation 7(1)
TUPE 2006, Regulation 7(2): A dismissal is not automatically unfair under 7(1) if the sole or principal reason is an economic, technical, or organisational (ETO) reason entailing changes in the workforce.
TUPE 2006, Regulation 7(2)
ERA 1996, Section 98: Unfair dismissal – the employer must show a fair reason for dismissal and act reasonably in dismissing.
ERA 1996, Section 98
Kuzel v Roche Products Ltd: Guidance on analyzing automatic unfair dismissal claims, including burden of proof and identifying the reason for dismissal. The employer must prove the reason for dismissal.
Kuzel v Roche Products Ltd [2008] EWCA Civ 380
Outcomes
Second appeal allowed.
The Employment Tribunal's finding that safety concerns were the sole or principal reason for dismissal was not supported by the Respondent's pleadings or evidence. The Respondent failed to prove a reason for dismissal other than the TUPE transfer. Therefore, the dismissal was automatically unfair under TUPE 2006, Regulation 7(1).