Helen Badger, employment law expert, Browne Jacobson

Whilst the protection against unfair dismissal under the TUPE regulations applies to all employees, the right to pursue a claim of unfair dismissal in the employment tribunal is (except in limited circumstances) dependent on an employee having 12 months continuous employment.

A dismissal is automatically unfair if it is a result of the transfer itself or a reason connected with the transfer, and not connected to an economic, technical or organisational (“ETO”) reason entailing changes in the workforce.

Fortunately, as these employees have been employed for less than 12 months service, they wouldn’t have the required qualifying service to pursue a claim for unfair dismissal. Even if they had been employed for more than 12 months, the fact of the relocation is likely to amount to an ETO reason and mean that the dismissal would not be automatically unfair.

However, as TUPE still applies to these employees you do need to ensure that you comply with your obligations in relation to information and consultation. Employee representatives need to be provided with information about the transfer, including the proposed date, the reasons for it and the legal, economic and social implications for the employees.

If you were to propose to take measures, i.e. relocating the employees or making them redundant, then you would also have an obligation to consult representatives, with a view to seeking agreement to the measures. If you fail to inform and consult employee representatives, then the representatives would be entitled to pursue a claim on behalf of the employees and each employee could be awarded a maximum of 13 weeks pay as compensation for the failure.

Helen can be contacted at: hbadger@brownejacobson.com

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