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[2009] All ER (D) 12
The employer's predecessor traded as a wholesaler in fruit and vegetables supplying catering businesses and hotels with fresh produce. From 1 March 2003, the employee was a director and 50% shareholder in that company. In mid-2006, the company ran into financial difficulties resulting in its administration. On 6 December, the sale of assets to the employer took place. The employee was taken on by the employer pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246. On 23 November 2007, the employee was dismissed. The employee presented his originating application to the employment tribunal complaining of unfair discrimination. The employer contended that the employee had not completed a year's continuous service so as to qualify for ordinary unfair dismissal protection. The tribunal held that the effect of reg 4 of the 2006 Regulations was, on the facts of the instant case, disapplied by reg 8(7) so that, regardless of employee status with the employer's predecessor, the employee did not have sufficient service to bring his claim of unfair dismissal against the employer. The employee appealed.
Held – The appeal would be dismissed. The tribunal's construction of the 2006 Regulations accorded with the policy behind Reg 8(7); namely the 'rescue culture', whereby a purchaser was not put off by the effects of transfer of undertaking protection. The outcome was that some jobs were preserved and the creditors benefited from the best available option. The tribunal had been entitled to come to its conclusion.
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