Can an employee be ‘re-engaged’ if still employed by the employer? Yes
The Court of Appeal in the TUPE case of Hazel & anor v Manchester College has answered the above two questions in the affirmative. The facts of the case can be found in the previous bulletin reporting the EAT decision.
Since Berriman v Delabole Slate (1985) it has been clear that in the TUPE context dismissals as a result of ‘harmonisation’ do not amount to “economic, technical organisation reason entailing changes in the workforce”. Accordingly, these dismissals would be automatically unfair dismissals under TUPE 2006.
In Hazel & anor v Manchester College the employer tried to get around Berriman by arguing that the dismissal of the employees was not because of harmonising contracts in isolation but rather part of overall cost saving strategies which included workforce changes in the form redundancy. However, the Court of Appeal gave this argument relatively short shrift stating that in relation to these individual employees the principal reason for the dismissal was refusal to accept the new ‘harmonised’ terms, this was connected with the TUPE transfer, and this following Berriman is not a reason “entailing changes in the workforce”. So, the collective context could not circumvent the protection of TUPE that applies to individual contracts of employment.
Interestingly, the employer also appealed the re-engagement remedy aspect by arguing that this remedy was not available as the employees had moved onto the ‘new’ contracts (ie still employed by the same employer) and so the tribunal had no jurisdiction to order them to be ‘re-engaged’ under the terms of the ‘old’ contracts. The Court of Appeal rejected this and accepted the employees’ argument that the employer’s argument confused “termination of the contract employment” with “termination of the employment relationship”. Although there was still an “employment relationship” the ‘old’ contract of employment had been terminated.
The case was decided under the 2006 TUPE Regulations - it is unclear whether the slight change in the wording of TUPE introduced by last month's amendments will lead to a different result going forward.