TRANSFER OF UNDERTAKINGS
The claimant worked for a micro-business which was transferred by its sole owner to a company formed by another employee of that business. Following the transfer, and the transferee proposing changes to the terms of employment, the claimant resigned. She complained of a failure by the transferor to comply with TUPE 2006 Regulation 13, and brought unfair dismissal and wages and holiday pay claims against the transferee. In so far as the transferor had not informed the claimant of the post-transfer measures proposed by the transferee under Regulation 15(2)(d), the transferor claimed that this was because the transferee had failed to comply with its duty to give her the requisite information under Regulation 13(4). That potentially exposed the transferee to an award under Regulation 15(8)(b) in the event of that defence succeeding.
Shortly before the employment tribunal hearing the claimant and the transferee reached a settlement though ACAS which was followed by a withdrawal and a dismissal.
The tribunal held that the transferor’s defence to the Regulation 15(2)(d) complaint succeeded, but that the effect of the dismissal upon withdrawal in respect of the transferee was that the tribunal was precluded from making a Regulation 15(8)(b) award against it. It did not err in so finding.
The tribunal found that the transferor had failed to inform the claimant pre-transfer of the transferee’s identity, but made a zero award of compensation in that respect. It erred by describing this as a ‘very technical breach’ and by categorising it as a breach of Regulation 13(2)(b), not of Regulation 13(2)(a). Given the importance of knowing the actual identity of the employer, a zero award was wrong. The matter was remitted for fresh assessment of the award in that respect.
Judges:
His Honour Judge Auerbach
Citations:
[2022] UKEAT 2020-000828
Links:
Jurisdiction:
England and Wales
Employment
Updated: 06 June 2022; Ref: scu.677783
