Four night drivers unfairly dismissed after employer wrongly assumed TUPE transfer
Four HGV night drivers with up to 12 years' service were unfairly dismissed when their employer assumed their jobs would transfer to a new contractor under TUPE, but the tribunal found no organised grouping existed.
2 min read · Last updated 19 May 2026
Case details
Key facts
- The four individual claimants were HGV night drivers employed by the first respondent at Portbury.
- The first respondent lost a contract to transport vehicles from Portbury to Greenhous, Stoke-on-Trent, to the second respondent.
- The first respondent believed the claimants' employment transferred to the second respondent under TUPE and dismissed them on 30 November 2020.
- The tribunal found no organised grouping of employees dedicated to the Greenhous work, so TUPE did not apply.
- The claimants were unfairly dismissed by the first respondent due to redundancy, but the first respondent failed to consult or follow a fair procedure.
- The tribunal made no Polkey reduction because there was insufficient evidence to assess the chance of fair dismissal.
Timeline
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Mr Sposito started employment
Mr Sposito commenced employment with the first respondent as an HGV driver.
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Mr Almey started employment
Mr Almey commenced employment with the first respondent as an HGV driver.
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Mr Palmer started employment
Mr Palmer commenced employment with the first respondent as an HGV driver.
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Night drivers returned from furlough
The eight night drivers, including the claimants, returned from furlough after the first COVID-19 lockdown.
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First respondent learned of contract loss
The first respondent was informed that they would not be awarded the PO10 contract for Greenhous deliveries.
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First respondent notified Gefco of drivers
Mr McGurl emailed Gefco stating that five (later six) night drivers were dedicated to the Greenhous route.
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Claimants informed of TUPE transfer
The first respondent wrote to the claimants stating they were identified as TUPE transferees due to the transfer of work.
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Claimants dismissed
The claimants' employment with the first respondent terminated. They did not accept offers of roaming driver roles.
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Claim forms presented
The claimants and Unite the Union presented claims to the employment tribunal.
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Final hearing commenced
The final hearing took place over five days by video.
The legal issue
The tribunal had to decide whether the drivers' employment transferred to the new contractor under TUPE due to a service provision change, and if not, whether they were unfairly dismissed by their original employer.
The outcome
The tribunal ruled that the four HGV night drivers were unfairly dismissed by their employer, Walon Limited t/a BCA Automotive. The employer had wrongly believed the drivers' jobs would transfer to the new contractor under TUPE and dismissed them without any consultation or fair procedure.
The key reasons were:
- There was no organised grouping of employees dedicated to the lost contract, so TUPE did not apply.
- The employer therefore dismissed the drivers for redundancy but failed to consult or follow a fair process.
- The tribunal made no Polkey reduction, as there was insufficient evidence to assess the chance of a fair dismissal.
The drivers are entitled to:
- Redundancy payments
- Compensation for unfair dismissal
- Holiday pay for accrued but untaken leave
- Notice pay
The exact amounts will be determined at a remedy hearing.
Lessons & takeaways
- Employers should not assume TUPE applies without checking whether there is an organised grouping of employees dedicated to the transferred activities.
- Even if redundancy is the reason for dismissal, a fair consultation process is essential – failing to consult at all will almost certainly make the dismissal unfair.
- Long-serving employees (here, up to 12 years) are entitled to a proper process; the tribunal will not reduce compensation if the employer provides no evidence that a fair dismissal would have occurred.
- If you are told your job is transferring under TUPE, you should check whether the work you do is truly dedicated to that client – if not, you may remain employed by your original employer.
When TUPE doesn't apply: a costly assumption
This case shows what can go wrong when an employer jumps to conclusions about TUPE. The four drivers – all HGV night drivers with between 4 and 12 years' service – were told in October 2020 that their jobs would transfer to a new contractor under TUPE because their employer had lost a contract to transport vehicles from Portbury to Stoke-on-Trent. But the tribunal found there was no 'organised grouping' of employees dedicated to that work: the night drivers covered multiple routes, not just the lost contract. As a result, TUPE did not apply, and the drivers remained employed by their original employer.
What the employer did wrong
Instead of consulting the drivers about redundancy or exploring alternatives, the employer simply dismissed them on 30 November 2020, relying on the mistaken belief that they would transfer. The tribunal was clear: this was not a fair redundancy process. There was no consultation, no consideration of alternative roles (such as the 'roaming driver' roles offered, which the drivers did not accept), and no evidence that the employer would have dismissed fairly even if it had followed a proper process. The tribunal refused to make a Polkey reduction because the employer provided no evidence to show what would have happened in a fair procedure.
What this means for similar claims
For employees in similar situations, this case reinforces that TUPE is not automatic – it depends on whether there is an organised grouping of employees whose principal purpose is carrying out the activities for the client. If you are told you are transferring, you should check whether you are genuinely dedicated to that work. For employers, the message is clear: never assume TUPE applies without proper analysis, and never skip consultation. A failure to consult, even in a genuine redundancy situation, will almost always render a dismissal unfair. The drivers here were awarded redundancy payments, compensation for unfair dismissal, holiday pay, and notice pay – with the exact figures to be decided at a remedy hearing.
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