The NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017

Dismissal of employee because of transfer

3.—(1) Where a person whose contract of employment is transferred by this Schedule is dismissed by the Secretary of State, that person is to be treated, for the purposes of Part 10 of the Employment Rights Act 1996(1) (unfair dismissal) as having been unfairly dismissed if the sole or principal reason for the dismissal is the transfer itself.

(2) This sub-paragraph applies where the sole or principal reason for a person’s dismissal is an economic, technical or organisational reason entailing changes in the workforce of the Secretary of State after the transfer.

(3) Where sub-paragraph (2) applies, sub-paragraph (1) does not apply and, without prejudice to section 98(4) of the Employment Rights Act 1996 (test of fair dismissal)(2), for the purposes of sections 98(1) (reason for dismissal) and 135 (the right to a redundancy payment) of that Act—

(a) the dismissal is to be regarded as having been for redundancy where section 98(2)(c) of that Act applies; or

(b) in any other case, the dismissal is to be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position that the employee held.

(4) Sub-paragraph (1) does not apply in relation to a dismissal of an employee if the application of section 94 of the Employment Rights Act 1996 (right not to be unfairly dismissed) to that dismissal is excluded by or under any provision of that Act, the Employment Tribunals Act 1996(3) or the Trade Union and Labour Relations (Consolidation) Act 1992(4).

(1)

1996 c. 18.

(2)

Section 98 was amended by sections 9 and 44 of, paragraphs 5 and 15 of Schedule 4 to, and table 2 of Schedule 9 to, the Employment Relations Act 1999 (c. 26); by section 53 of, and paragraphs 24 and 32 of Schedule 7 to, the Employment Act 2002 (c. 22); by section 57(1) of, and paragraph 30 of Schedule 1 to, the Employment Relations Act 2004 (c. 24); and by SI 2006/1031 and 2011/1069.

(3)

1996 c. 17.

(4)

1992 c. 52.