What is a TUPE?
In the Employment Appeal Tribunal (EAT), employee Gary Lewis (GL) won his second appeal against his former employer, Dow Silicones UK Limited. The case focussed on the protections afforded to employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). This case centered on whether the changes to Lewis’s employment conditions after the transfer of his employment from Npower to Dow Silicones were substantially detrimental and if such changes were primarily due to the business transfer.
GL initially worked as an operations technician at a Combined Heat and Power Plant (CHPP) owned by Npower. His employment was transferred to Dow Silicones following the plant’s sale. After a series of outsourcing and insourcing involving COFELY (later renamed Engie), GL faced new working conditions imposed by Dow Silicones that he argued substantially worsened his working situation. These changes led him to resign and claim constructive dismissal under Regulation 4(9) of TUPE 2006 and/or section 95(1)(c) of the Employment Rights Act 1996 (ERA).
The original Employment Tribunal dismissed GL’s claims in 2019, finding that the changes did not constitute a substantial change to his detriment. However, GL appealed, and in December 2020, the EAT led by HHJ Shanks found that the Tribunal had erred. The EAT determined that the changes were indeed substantial and materially detrimental. The matter was remitted to the Employment Tribunal to decide on the unfair dismissal claim, specifically whether the dismissal was automatically unfair under TUPE. The Claim was again dismissed!
On the second appeal, the EAT found that the Employment Tribunal’s subsequent decision still failed to appropriately address the core issues under TUPE, particularly in correctly identifying the real reason for the dismissal, which should have been seen as linked primarily to the transfer of the business. The EAT thus substituted its decision, confirming that the dismissal was automatically unfair due to the transfer, and remitted the case solely to determine the appropriate remedy for GL.
This final decision by the EAT not only underscores the protective intent of TUPE but also corrects previous judicial missteps in handling the specifics of the case. It serves as a reaffirmation of employment law’s role in safeguarding employee rights during corporate restructuring and transfers, ensuring that employers provide substantial justifications for detrimental changes to employment conditions post-transfer. The case will now go back to a different Employment Tribunal, which will focus on the remedies owed to GL, reflecting a definitive victory for employee rights under TUPE.
Gary Lewis’s case against Dow Silicones UK Limited stands as a compelling example of an employee’s resolve to challenge and seek justice in employment disputes, particularly under the complexities of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). After facing unfavorable initial rulings at the Employment Tribunal, GL’s apparent determination to appeal and challenge those decisions illustrates the crucial role of persistence in legal battles concerning employment rights. Employment Tribunal’s can be gruelling experiences with or without a lawyer.
This story underscores the importance for employees to understand their rights and the potential need to seek justice when they believe those rights have been compromised, especially during business transfers that might affect their employment conditions. Lewis’s journey through the legal system, resulting in the Employment Appeal Tribunal recognizing the merit in his claims, serves as an encouragement to other workers who might find themselves in similar circumstances.
For any employee navigating changes in their employment situation that seem unjust or improperly handled, this case highlights the benefit of seeking professional legal advice. Regulated legal experts who specialize in employment law can offer guidance and representation, ensuring that employees’ rights are vigorously defended. Employees should consider consulting with legal professionals to explore their options, understand their rights under laws like TUPE, and effectively address any potential infringements.
While GL’s story is specific to his circumstances and the legal outcomes are directly related to the facts of his case, it serves as a general reminder of the protections that employment laws provide and the legal recourse available. Workers facing changes or disputes in their employment conditions are encouraged to seek proper regulated legal advice to assess the merit of their specific situations and to pursue justice where appropriate.
Disclaimer: This article is provided for informational purposes only and is intended to benefit the public in the relevant jurisdiction. It does not constitute legal advice. Readers are advised to seek professional legal advice n their relevant jurisdiction for specific issues or concerns related to their individual circumstances.
