Gary Lewis v Dow Silicones UK Limited
[2024] EAT 51
Wendy Drake v Churchill Contract Services Ltd
22 May 2024
[2024] EAT 88
Employment Appeal Tribunal
A cleaner was unfairly dismissed after her job transferred to a new company under TUPE rules. The first judge only looked at a part of her case, ignoring the possibility of a stronger claim. The Appeal Court sent the case back to be looked at properly, because the cleaner, representing herself, didn't fully understand the rules or how to explain her case completely.
Key Facts
- •Claimant, a cleaner, transferred to Respondent under TUPE Regulations 2006.
- •Respondent consulted with Claimant about changing terms and conditions, but no agreement was reached.
- •Respondent dismissed Claimant, re-engaged her on new terms.
- •Claimant, acting as litigant in person, claimed unfair dismissal.
- •Employment Tribunal dismissed the claim, treating it as ordinary unfair dismissal.
- •Claimant appealed, arguing the Tribunal should have considered automatically unfair dismissal under TUPE Regulation 7.
- •Claimant's claim form and pre-hearing communications referenced a letter indicating potential changes/redundancies post-TUPE transfer.
Legal Principles
TUPE Regulation 4(1): Relevant transfer doesn't terminate employment contracts; contracts continue as if originally made with transferee.
TUPE Regulations 2006
TUPE Regulation 7(1): Dismissal solely or principally due to transfer is automatically unfair.
TUPE Regulations 2006
TUPE Regulation 7(2): Regulation 7(1) doesn't apply if dismissal is for an economic, technical, or organisational (ETO) reason entailing changes in the workforce.
TUPE Regulations 2006
Employment Tribunals must proactively clarify claims, especially when claimants are litigants in person.
McLeary v One Housing Group Ltd UKEAT/0124/18, Mervyn v BW Controls Ltd [2020] EWCA Civ 393
A list of issues is a case management tool, not a binding adjudication; Tribunals can revisit if necessary in the interests of justice.
Parekh v London Borough of Brent [2012] EWCA Civ 1630
Tribunals are not required to consider every matter raised in the claim form if it's clear a claim has been withdrawn or isn't being pursued.
Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954
Outcomes
Appeal allowed.
The Employment Tribunal erred by failing to proactively consider whether the claimant was pursuing a claim under TUPE Regulation 7 (automatically unfair dismissal) in addition to or instead of an ordinary unfair dismissal claim. The claimant's claim form and pre-hearing communications contained sufficient information to put the Tribunal on notice of this possibility.
Case remitted to the Employment Tribunal.
The Tribunal must reconsider whether the claimant's dismissal was due to the TUPE transfer (Regulation 7) and, if so, whether it was also for an ETO reason. The existing factual findings do not preclude this possibility.