TUPE transfer meant employer was not liable for constructive dismissal
Two employees who claimed constructive dismissal and unfair dismissal against Britannia Driving School Ltd had their claims dismissed after the tribunal found a TUPE transfer had already moved their employment to another company.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimants were employed by Britannia Driving School Limited (BDS Ltd) from 2003 and 2014 respectively.
- In August 2020, a new company, Britannia Driving School 1992 Ltd (1992 Ltd), was incorporated following a family dispute.
- By early April 2021, the business was effectively operated by 1992 Ltd, with instructors and customers directed to new bank accounts.
- On 1 May 2021, Simon Buksh (on behalf of BDS Ltd) dismissed Mrs Smith for gross misconduct.
- On 2 May 2021, Miss Felton resigned, claiming constructive dismissal.
- The tribunal found that a TUPE transfer had occurred before the dismissals, so all claims against BDS Ltd were dismissed.
Timeline
-
Miss Felton started employment
Miss Felton began working for the Britannia Driving School business.
-
Mrs Smith started employment
Mrs Smith joined the business as Sales & Customer Service Assistant.
-
1992 Ltd incorporated
Britannia Driving School 1992 Ltd was incorporated with Alan's wife and son as directors.
-
Simon discovers lock change
Simon Buksh discovered the office locks had been changed, indicating he was being excluded.
-
Business resumed operations
The office reopened and instructors were directed to pay franchise fees to 1992 Ltd's account.
-
Mrs Smith dismissed
Simon Buksh dismissed Mrs Smith for gross misconduct via WhatsApp.
-
Miss Felton resigned
Miss Felton emailed her resignation, citing unpaid wages and working while furloughed.
-
Claimants returned to work
Both claimants returned to the office and continued working for the business under 1992 Ltd.
-
ACAS Early Conciliation started
The claimants began ACAS Early Conciliation.
-
Claim presented
The first claim was presented to the Employment Tribunal.
The legal issue
The tribunal had to decide whether there was a relevant transfer of an undertaking under TUPE from Britannia Driving School Ltd to Britannia Driving School 1992 Ltd before the claimants' dismissals, which would mean the respondent was not the correct employer and all claims must be dismissed.
The outcome
The tribunal dismissed all claims against Britannia Driving School Ltd, including unfair dismissal, constructive dismissal, unpaid holiday pay, unlawful deductions from wages, and breach of contract.
The key reason was that a TUPE transfer had taken place before the dismissals. The business had effectively transferred to Britannia Driving School 1992 Ltd, so the original employer was no longer liable.
No compensation was awarded as the claims were dismissed in their entirety.
Lessons & takeaways
- If you work for a business that changes hands, your employment may automatically transfer to the new employer under TUPE – check whether you have been transferred before bringing a claim against the old employer.
- Constructive dismissal claims rely on the employer's breach of contract – if the correct employer has changed, you must claim against the new employer, not the old one.
- A family dispute or change in company structure does not necessarily mean a TUPE transfer has occurred – the tribunal will look at whether the business retained its identity and continued operating.
- If you are dismissed or resign shortly after a suspected transfer, it is crucial to identify the correct respondent for any tribunal claim.
What this case shows
This case highlights the importance of identifying the correct employer when bringing an employment claim. Two long-serving employees of Britannia Driving School Ltd claimed they were unfairly dismissed – one by being sacked via WhatsApp, the other by resigning after unpaid wages and being asked to work while furloughed. However, the tribunal found that before these events, the business had already transferred to a new company, Britannia Driving School 1992 Ltd, under TUPE regulations.
What could have been done differently
The claimants could have investigated whether a TUPE transfer had occurred before filing their claims against the original company. If they had brought their claims against the new employer, the outcome might have been different. The tribunal noted that after the transfer, both claimants continued working for the business under the new company, which strongly indicated that their employment had transferred.
Why this matters
TUPE transfers can be complex, especially when a family dispute leads to a split in a business. Employees should be aware that if the business they work for continues with a new owner or company structure, their employment rights may transfer automatically. Bringing a claim against the old employer after a transfer is likely to fail, as the tribunal will dismiss the case for lack of jurisdiction.
Similar cases
Chef unfairly dismissed after TUPE transfer: employer failed to inform and consult
A chef was unfairly dismissed after her employment transferred to a new company under TUPE. The tribunal awarded over £12,800 for unfair dismissal, plus compensation for failure to inform and consult, unpaid holiday pay, and lost pension contributions.
Constructive dismissal after unpaid bonus and broken director promise
A family law executive who resigned after her employer failed to pay a £7,000 bonus and refused to make her a director has won her constructive unfair dismissal claim. The tribunal awarded £12,878 in compensation.
Night porter and maintenance man win claims after employer hid behind corporate maze
A night porter with 14 years' service and a maintenance man were awarded unpaid wages, holiday pay and redundancy after a tribunal found their employer deliberately used a complex corporate structure to avoid responsibility.
Redundancy dismissal found unfair but 100% Polkey deduction applied
A former employee with 12 years' service was unfairly dismissed by reason of redundancy, but a 100% Polkey deduction meant no compensatory award. The tribunal awarded £4,362.20 for redundancy, unpaid wages, holiday pay, and other losses.