Greater Glasgow Health Board v Neilson UKEATS/0013/20/SH

Appeal against the ET’s order for re-engagement of the Claimant who had been unfairly dismissed. Appeal allowed.

The Claimant was a partner in a GP practice that provided GP services under a contract with the Appellant. When the partnership was dissolved, the Appellant, as an interim measure, took over the employment contracts of the practice's employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"); however, the Claimant was not an employee, and he was offered a fixed-term contract to provide GP services. When another GP practice ("the LP") took over from the Appellant, again under TUPE, the Appellant gave the Claimant notice of termination of his fixed-term contract. The Claimant claimed unfair dismissal (which was impliedly accepted as being by reason of the TUPE transfer), and the ET made an order against the Appellant for re-engagement of the Claimant by the LP, on the basis that the LP was a "successor of the employer" under sections 115, 116 and 235 of the Employment Rights Act 1996 ("ERA 1996"). The Appellant appealed.

The EAT held that the ET had erred in failing to consider whether it was practicable for the Appellant to comply with the re-engagement order, since it had only considered whether it would be practicable for the LP to re-engage the Claimant; as a result, the ERA 1996 provisions were not engaged. Accordingly, the whole of the ET's judgment would be set aside, and the case would be remitted to a fresh ET for a full rehearing.

Published: 08/03/2021 17:54

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