EAT Transfer of Undertakings: Entity – TRANSFER OF UNDERTAKINGS – Transfer
UNFAIR DISMISSAL – Compensation
UNFAIR DISMISSAL – Mitigation of loss
UNFAIR DISMISSAL – Polkey deduction
In deciding whether Claimants have been assigned to an organised grouping of employees within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 the Employment Judge failed to consider the organisational structure of the putative transferor and the role of the claimants, including their contractual obligations, within it (Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ECR 519)
In applying Polkey the Employment Judge speculated that the putative transferee would not have terminated its contract with the service provider if they had appreciated that TUPE would apply. This was the wrong approach to Polkey and was not based on evidence.
The Employment Judge failed to deal with or, if he considered it, to give reasons for rejecting an argument on causation of loss raised by the Respondent.
Insufficient reasons were given for decisions on mitigation of loss.
Slade DBE J
[2014] UKEAT 0169 – 14 – 1912
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales
Employment
Updated: 24 December 2021; Ref: scu.540353
