Addleshaw Goddard

UK 200 2013 position: 23

Dismissals for rejection of harmonised terms were automatically unfair

The Court of Appeal has upheld the Employment Appeal Tribunal (EAT) decision that while the harmonisation of terms post TUPE transfer can be for an economic, technical or organisational (ETO) reason, it does not entail ‘changes to the workforce’. This is even where the harmonisation is carried out as part of a wider programme of cost-saving measures, including a number of redundancies, and is specifically being carried out to avoid further job losses. As such, the dismissal of two transferred employees on the grounds of their refusal to accept the new terms and conditions was automatically unfair. The court also upheld the EAT’s decision to award the unfairly dismissed employees re-engagement, notwithstanding that they had already signed up to the harmonised terms, albeit under protest (Hazel and another v The Manchester College).

This case arose in relation to the now deleted TUPE regulation 7(1)(b), which stated that a TUPE-connected dismissal would be automatically unfair, unless it was for an ETO reason, which also entailed ‘changes to the workforce’. It has been established in past case law that changes require a change in the numbers of the workforce or their functions, and that the mere harmonisation of terms with the transferee’s existing workforce is not sufficient…

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