TUPE transfer dismissal: tribunal rejects employer's bid to strike out late claim
A tribunal refused an employer's application for a deposit order against a former employee whose unfair dismissal claim was filed one day late, finding he had reasonable prospects of arguing the effective date of termination was after the transfer date.
1 min read · Last updated 19 May 2026
Key facts
- The claimant was employed by the transferor immediately before a TUPE transfer on 18 August 2022.
- The respondent applied for a deposit order on the basis that the claim had little reasonable prospect of success due to time limits.
- There was no direct communication from the respondent to the claimant that his contract was terminated on 18 August 2022.
- The claimant notified Acas on 18 November 2022, one day after the primary limitation period if the EDT was 18 August 2022.
- The tribunal found that the claimant had reasonable prospects of showing the EDT was after 18 August 2022.
Timeline
-
TUPE transfer date
A relevant transfer occurred from Aurora Ltd (transferor) to Aurora Lighting UK Ltd (respondent). The claimant's employment allegedly transferred.
-
Communication from administrators
The administrators of the transferor communicated with the claimant about the termination, but the relevance was not about the EDT itself.
-
Acas notification
The claimant notified Acas of his claim, one day after the primary limitation period if the EDT was 18 August 2022.
-
Deposit order application
The respondent applied for a deposit order, arguing the claim had little reasonable prospect of success because the EDT was 18 August 2022 and the claim was out of time.
-
Case management summary
Employment Judge Varnam ordered a further preliminary hearing to consider the deposit order application.
-
Preliminary hearing
The hearing took place via CVP at Watford before Employment Judge Alliott. Both parties were represented by counsel.
-
Judgment issued
The tribunal dismissed the respondent's application for a deposit order, finding the claimant had reasonable prospects of showing the EDT was after 18 August 2022.
The legal issue
Whether the former employee had little reasonable prospect of establishing that his effective date of termination was after 18 August 2022, so that his unfair dismissal claim was not out of time.
The outcome
The tribunal dismissed the respondent's application for a deposit order.
The key reason was that there was no direct communication from the respondent to the claimant that his contract was terminated on the transfer date (18 August 2022). The claimant relied on later communications from the transferor's administrators, which could show the effective date of termination was after 18 August 2022.
No compensation was awarded as the case continues.
Lessons & takeaways
- If you are dismissed during a TUPE transfer, check whether you received clear written notice of termination from the new employer.
- The effective date of termination is the date you learn of your dismissal, not necessarily the date the employer says it happened.
- Even if your claim is filed one day late, you may still have a case if you can argue the termination date was later than the employer claims.
- Employers who apply for deposit orders must show the claim has 'little reasonable prospect of success' – a high bar that is not met if there is a genuine factual dispute.
What this case shows
This case illustrates how the effective date of termination (EDT) can be disputed in a TUPE transfer context. The former employee was allegedly transferred to a new employer on 18 August 2022, but received no direct communication from the transferee about his dismissal. Instead, the administrators of the transferor contacted him on 25 August 2022. The employee notified Acas on 18 November 2022 – one day after the primary limitation period would have expired if the EDT was 18 August 2022.
The employer argued the claim was out of time and applied for a deposit order, which would have required the employee to pay up to £1,000 to continue his claim. However, the tribunal found that because there was no direct communication from the respondent, the employee had reasonable prospects of arguing the EDT was after the transfer date.
What the employer could have done differently
The respondent could have avoided this dispute by clearly communicating the termination in writing on the transfer date. Instead, the lack of direct notice left the EDT open to challenge. The tribunal noted that the administrators' communication on 25 August 2022 was relevant to when the employee learned of his dismissal, which is the key date under the Gisda Cyf v Barratt principle.
Why this matters
This decision shows that tribunals will not automatically strike out claims that are filed just outside the three-month window if there is a genuine dispute about the EDT. Employees who are dismissed without clear written notice from their employer may have grounds to argue a later termination date. For employers, the lesson is clear: provide written notice of termination immediately and ensure it is communicated directly to the employee to avoid time-limit arguments.
Similar cases
Parkinson's and technical issues: tribunal extends time for unfair dismissal claim
A university academic with Parkinson's disease was allowed to pursue her unfair dismissal claim 10 days late after the tribunal found it was not reasonably practicable to file on time due to her disability and IT problems.
Maths teacher dismissed for alleged laptop theft: claim thrown out for being 18 days late
A tribunal struck out a maths teacher's unfair dismissal and age discrimination claims after he filed 18 days late and failed to pay a £500 deposit for the weak discrimination claim.
Dental nurses dismissed before a TUPE transfer win automatic unfair dismissal claim
Two dental nurses were automatically unfairly dismissed when their employer claimed redundancy but the real reason was a planned transfer of the dental business to a new provider. The tribunal awarded £7,090 in compensation.
Unfair dismissal claim thrown out for being 104 days late
A former employee's unfair dismissal claim was dismissed because she presented it 104 days after the three-month time limit. The tribunal found no reasonable excuse for the delay.