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If we are dismissed by our new employer after a business transfer can we claim unfair dismissal?
Maybe, but the situation is not straightforward.
Only employees can claim unfair dismissal, and you will need two years’ service, unless you are alleging that the dismissal is for a reason that doesn't need any service (such as a trade union-related reason).
Irrespective of the transfer, you have the basic right not to be unfairly dismissed by your new employer. Your employer must:
- have a fair reason for deciding to dismiss you; and
- act reasonably when dismissing you for that reason.
TUPE provides some limited extra protection against dismissal by the new employer.
It is automatically unfair to dismiss employees because of the transfer. For example, on a business sale, if you are sacked because the buyer simply refuses outright to take on some of the workforce, this would be an automatically unfair dismissal in breach of TUPE. You need two years’ service to bring your claim.
However a dismissal will not be automatically unfair if it is for an 'economic, technical or organisational' (ETO) reason entailing changes in the workforce. An example would be where a buyer dismisses employees after the transfer because the new combined workforce is too large, meaning that redundancies are needed.
Another example would be where the buyer is located a long way away, and the seller’s workforce live too far away to commute (and can't work from home). Again this would be an economic, technical or organisational (ETO) reason capable of justifying dismissals.
Even if your employer has an ETO reason for dismissal, it must still follow proper procedures and act reasonably.
When redundancies are needed in the context of TUPE, they should be made by the new employer after the transfer, and the selection pool for those redundancies should include employees from both the transferring workforce and the existing workforce.
The new employer should devise fair and non-discriminatory selection criteria and try to avoid methods that give their existing workforce an unfair advantage. This can be particularly difficult where, for example, line managers assessing staff have worked closely with one group of workers and not the other.
Consulting properly with reps over the proposed selection methods and criteria can help minimise the risk of perceived bias and unfair advantage.
Redundancy payments must be made to workers with enough service.
TUPE law is very complicated. Speak to a union rep as soon as possible. Join a union if you are not yet a member. Browse the workSMART Union Finder tool to find the union most suited to your needs.