Under the TUPE legislation, where an employee has a bad attendance or disciplinary record, is the transferee obliged to accept the employee?
Yes. Where there is a TUPE transfer, employees who were employed by the transferor immediately before the transfer, automatically become employed by the transferee, from the moment of the transfer. They will be entitled to the same terms and conditions they enjoyed with the transferor. The transferee cannot therefore pick and choose which employees it takes on.
If, following the transfer, the transferee refuses to accept an employee with a poor attendance or disciplinary record, the employee can treat him- or herself as dismissed and make a claim of unfair dismissal against the transferee. However, he or she must have at least two years' continuous service to be able make such a claim.
Employers should note that all employees, regardless of length of service, can make claims for wrongful dismissal, ie for failure to pay their notice.