The 2014 Regulations will potentially narrow the right of employees to claim unfair dismissal in connection with a TUPE transfer.
An employee will now only be able to raise a claim for automatically unfair dismissal if ‘the sole or principal reason’ for the dismissal is the transfer itself.
An employer may avoid liability for dismissal in a transfer situation if they are able to establish that the reason for dismissal was an economic, technical or organisational (ETO) reason entailing changes in the workforce.
The definition of an ETO defence has also been extended by the 2014 Regulations so that ‘changes in the workforce’ will also include a change in the place where employees are employed. This is a welcome change for transferees who are often left in a difficult position if they provide the service from a different location.