cm_howleyEAT2012
EAT Transfer of Undertakings : Consultation and Other Information
TUPE – date of transfer – Entitlement and calculation of payment for failure to consult and to comply with statutory regime.
Polkey deduction – approach
1. Claimant dismissed on 3 February 2009 but completion of sale by Claimant’s employer only occurred in March 2009. Was there an effective transfer of Claimant’s contract of employment under TUPE to transferee by date of dismissal?
Held – Yes because the transferee was in control of business at time of transfer (Wheeler v Patel [1987] ICR 631 explained and distinguished).
2. Claim for increase pursuant to section 31(3) of Employment Act 2002 because of breaches of statutory procedures. Was there enough detail in Employment Tribunal’s reasons?
Held – Yes.
3. Claim for breach of Regulation 13 of TUPE. Was there an implied obligation on the employer to invite employees to elect representatives?
Held -Yes as otherwise regulation 13 would be rendered pointless.
4. Employment Tribunal made 50% Polkey deduction. The Employment Tribunal was entitled to reach this decision.
Silber J
[2012] UKEAT 0491 – 11 – 2402
Bailii
England and Wales
Employment
Updated: 31 October 2021; Ref: scu.451686