Mr Daniel Murphy v Sunrise Records and Entertainment Limited — 2020

The claimant, Mr Daniel Murphy, was dismissed by HMV on 24 January 2019 with a payment in lieu of notice. He argued that the dismissal was automatically unfair because it was linked to the TUPE transfer to Sunrise Records & Entertainment Limited, which later took over the Stevenage store on 5 February 2019. The tribunal identified the issue under regulation 7(1) of TUPE as whether the sole or principal reason for dismissal was the transfer.

The tribunal accepted that the claimant had been absent from work from July 2018, that occupational health considered he was unlikely to return to his current role in the near future, and that he did not want to return to Stevenage while B remained there. It found that he refused mediation, rejected the alternative roles offered, and remained unable to return to work at the time of the final review meeting. The tribunal accepted evidence from Ms Bartlett that the dismissal decision was reached because there was no foreseeable return to work and the realistic options had been explored.

Although the dismissal, HMV's administration, and the later transfer were close in time, the tribunal held that proximity alone did not establish the transfer as the reason for dismissal. Applying the burden of proof approach drawn from Kuzel and Marshall, and considering the factual chronology and correspondence, it found that the 28 January 2019 dismissal letter reflected the true reason for dismissal. The tribunal also rejected the suggestion that the respondent's later incorporation date meant the transfer could not be relevant as a matter of principle, referring to Spaceright, but held that point was academic because the evidence did not support the claim.

The tribunal concluded that the dismissal had nothing to do with the TUPE transfer and everything to do with the claimant's continued ill health absence and refusal of the available alternatives. It therefore struck out the unfair dismissal claim as having no reasonable prospect of success and dismissed it. No remedy was awarded.