Mrs O Carpenter v Fountain Montessori Pre-School Limited — 2022

Mrs Carpenter transferred to Fountain Montessori Pre-School Limited under TUPE after the business was acquired in November 2019. The tribunal found that from the outset Mrs Aiyetigbo intended to align the St Albans nursery with the respondent's standard terms, including extending hours and moving away from term-time-only working. Although the respondent did not implement the change immediately, it later sought to vary the claimant's contract, offered re-engagement on new terms, and gave notice of dismissal on 7 July 2020 when she would not agree to the proposed changes.

The tribunal held that the reason for dismissal was the transfer, or a reason connected with the transfer, and that the respondent had not shown an economic, technical or organisational reason entailing changes in the workforce. It found no change in the strength or functions of the workforce, and said the July 2020 dismissal was the implementation of a plan that had existed when the business was acquired. The claimant therefore succeeded in her automatic unfair dismissal claim under TUPE regulation 7. Her alternative redundancy argument failed because the tribunal did not find a redundancy dismissal within section 139 ERA 1996.

The indirect sex discrimination claim failed. The relevant PCP was the extension of working hours across the year, but the tribunal was not satisfied that the claimant had shown group disadvantage to women on the evidence before it. It noted the respondent's workforce was overwhelmingly female, that the claimant had produced no statistical or comparative evidence, and that the pool for comparison did not assist her case. The tribunal said that, had it been necessary to decide justification, the respondent's aim of aligning staffing with operating hours and business needs would have been legitimate and proportionate on the facts found.