Addressing dubious disciplinary action taken after a TUPE transfer

Zara loved her job so you can imagine how she felt when the company she worked for was purchased by new owners - and just weeks later she was facing the threat of dismissal.

The PR communications manager had been in her role for over 10 years, and after more than a decade of exemplary service had received nothing but positive feedback for her work.

So, Zara was shocked when just two weeks after the completion of the business takeover, she was invited to attend a disciplinary hearing to consider her poor performance and complaints from staff.

Prior to the business transfer Zara had what can be described as a falling out with a male director of the company. It was as a result of differing views on a promotional campaign.

Despite this he later assured Zara that her role would remain the same following the TUPE transfer.

Once the transfer of the business had been completed, the same director summoned Zara to his office ‘for a quick chat.’

He informed Zara that both he and the new owners were concerned about her work, and that a number of colleagues had made allegations about her treatment of them.

Zara was informed the matter was serious and, therefore, the decision had been taken that she would be suspended from work.

She protested it was unfair and asked for more information, which was not provided.

When Zara contacted our Employee Support Centre for help, she explained that she believed the action being taken was grossly unfair.

She was convinced it was as a result of a vendetta by the director following the disagreement between the pair, in which she was proved right.

Zara explained the strained working relationship between them, and what had felt like an uneasy truce prior to the sale of the business.

She was adamant no concerns had ever been raised about her performance, that she got on well with colleagues and had never been made aware of any concerns.

Prior to the disciplinary hearing taking place, our representative requested from the employer the evidence of any complaints from employees along with evidence of poor performance and any previous attempts to address it.

Bizarrely the company insisted all of the requested information was confidential, could not be provided before the hearing for data protection reasons, and Zara could only view it at the start of the hearing.

The employer also refused to provide any details of the complaints and performance concerns, which would enable Zara to understand what they were and to prepare to respond to them.

Our representative pointed out to the employer that failing to provide, and deliberately withholding, all of the evidence for the reason given, was a breach of the ACAS Code of Practice. However, the employer remained firm in its stance.

This led to our representative advising Zara to raise a grievance on a number of grounds that effectively amounted to unfair treatment following the TUPE transfer.

The employer initially said it would not deal with the grievance but, after further email correspondence with our representative, eventually agreed to hear it on the same day as the disciplinary hearing.

At this stage Zara was distraught by how she had been treated and had lost all trust and confidence in her employer.

She told our representative she did not want to return to work, did not want to be forced out and would prefer to reach a settlement agreement to allow her to leave.

At the grievance hearing our representative provided evidence, details and information to show a pattern of unfair treatment towards Zara both before and after the transfer, and to clearly demonstrate that the disciplinary action being taken was both unwarranted and unfair.

In response to our representative’s comprehensive presentation of Zara’s grievance, the employer initiated an off the record conversation.

This led to the disciplinary hearing being stopped, and a settlement being discussed and later negotiated and agreed. Zara was delighted with the terms, which exceeded her expectations.