Lewis v Dow Silicones UK Ltd UKEAT/0155/20/LA

Appeal against the ET’s decision that the Claimant was not unfairly dismissed. Appeal allowed in part.

The Claimant worked for the Respondent, which outsourced its staff to another company. When the Respondent "insourced" its staff, it involved a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"). The Claimant was unhappy with proposed changes to his working arrangements and he resigned, claiming unfair dismissal. He contended that the Respondent was acting in fundamental breach of his contract of employment and that his resignation gave rise to a constructive dismissal and/or that he could rely on regulation 4(9) of TUPE. The ET decided that there was no dismissal on either basis and rejected the claim. The Claimant appealed on the grounds that the ET's decision was perverse, stating that a properly directed ET should have found that there was a fundamental breach of contract by the Respondent and that the transfer would involve substantial changes to his material detriment for the purposes of regulation 4(9).

The EAT held, in relation to the claim of fundamental breach of contract, that the ET had made findings that were open to it on the evidence, and rejected this ground of appeal. However, the EAT held that the ET's findings in relation to regulation 4(9) were based on false reasoning and its decision was therefore perverse. Accordingly, the EAT substituted a decision that the Claimant was entitled to treat his contract of employment as terminated and was to be treated as having been dismissed by the Respondent; his complaint of unfair dismissal based on regulation 4(9) would be remitted to the same ET to determine.


Published: 18/03/2021 10:36

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