Commercial Director dismissed after TUPE transfer: race discrimination claim fails
A black African Commercial Director dismissed without notice or consultation after a TUPE transfer lost his race discrimination claim. The tribunal found no evidence that race played any part in the decision.
2 min read · Last updated 18 May 2026
Case details
- #race-discrimination
- #redundancy
- #tupe-transfer
- #recognition-agreement
- #covid-19
- #summary-dismissal
Key facts
- The claimant was employed as Commercial Director from 25 March 2019 until dismissal on 26 October 2020.
- His employment transferred from Vivacity to Peterborough Limited on 1 October 2020 under TUPE.
- He was dismissed with immediate effect without prior consultation or notice of redundancy.
- The respondent believed the claimant was not covered by the Recognition Agreement and could be terminated without consultation.
- The tribunal found no evidence that the claimant's race was a factor in his treatment.
- The manner of dismissal was described as disrespectful and undignified.
Timeline
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Employment commenced
Claimant started employment with Vivacity as Commercial Director.
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TUPE transfer
Claimant's employment transferred from Vivacity to Peterborough Limited.
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Email on costings
Ms Eastman sent an email seeking input on reopening sites, no mention of redundancies.
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Structural review discussion
Ms Eastman and Mr Kealey discussed a structural review of Vivacity due to COVID-19.
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Spreadsheet of roles
Ms Eastman sent a spreadsheet identifying roles to be retained or removed, including claimant's role as redundant.
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Meeting with HR
Mr Kealey advised Ms Eastman that claimant could be dismissed immediately without consultation.
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Dismissal
Claimant was dismissed with immediate effect, asked to return company property, and escorted from premises.
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Claim presented
Claimant presented his claim to the Employment Tribunal.
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Hearing commenced
Substantive hearing held over three days at Cambridge Employment Tribunal.
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Judgment given
Tribunal dismissed all claims of race discrimination.
The legal issue
The tribunal had to decide whether the claimant, a black African Commercial Director, was dismissed without notice or consultation because of his race, or whether the employer's actions were based on other legitimate factors such as the financial impact of COVID-19 and a genuine redundancy situation.
The outcome
The tribunal dismissed all claims of race discrimination. The key reason was that the evidence did not support a finding that the claimant's race was a factor in his treatment. The tribunal accepted that the respondent's decision to dismiss was driven by the financial impact of the COVID-19 pandemic and a genuine redundancy situation, not by racial bias.
No compensation was awarded as the claims failed.
Lessons & takeaways
- If you have less than two years' service, you cannot bring an ordinary unfair dismissal claim, but you may still have protection against discrimination from day one.
- A TUPE transfer does not automatically give you additional protection against dismissal; the new employer can still make you redundant if there is a genuine business need.
- To succeed in a race discrimination claim, you must provide evidence that race was a factor in the treatment you received – a poorly handled dismissal alone is not enough.
- Employers should ensure that their redundancy process is fair and transparent, even if the employee has limited service, to avoid allegations of discrimination.
A swift dismissal after a TUPE transfer
The claimant, a Commercial Director, had his employment transferred from Vivacity to Peterborough Limited on 1 October 2020 under TUPE. Just 25 days later, he was dismissed with immediate effect, without any prior consultation or notice of redundancy. He was asked to return company property and escorted from the premises. The manner of dismissal was described by the tribunal as 'disrespectful and undignified'.
However, the claimant had only 19 months' service at the time of dismissal – short of the two years needed to bring an ordinary unfair dismissal claim. His only route was to argue that his dismissal was an act of race discrimination. He claimed that his race (black African) was the reason he was singled out for redundancy and treated so poorly.
Why the claim failed
The tribunal carefully examined the evidence, including emails and witness testimony. It found that the respondent's Managing Director, Ms Eastman, had decided to restructure due to the financial impact of COVID-19. She identified the claimant's role as redundant based on a spreadsheet of roles to be retained or removed. The tribunal accepted that this decision was driven by business needs, not race.
Crucially, the tribunal noted that the claimant had not pointed to any direct evidence of racial bias. There was no suggestion that anyone involved in the decision made any race-related comments or treated him differently from other employees in a similar position. The fact that the dismissal was handled badly did not, by itself, prove discrimination.
What this means for similar claims
This case is a reminder that a poorly handled redundancy – even one that feels unfair and undignified – does not automatically amount to race discrimination. Claimants need to show that their protected characteristic was a factor in the treatment. For employees with under two years' service, the bar for proving discrimination is high, and the tribunal will look for concrete evidence rather than simply a flawed process.
For employers, the case highlights the importance of following a fair procedure, even when the employee has limited service. While the respondent won this case, the tribunal criticised the 'disrespectful' manner of dismissal, which could have supported a discrimination finding if other evidence had existed.
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