EAT TRANSFER OF UNDERTAKINGS – Consultation and other information
Employers tried to comply with the requirements of TUPE 2006 for consultation and information, but failed to provide for the election of appropriate representatives in a manner which complied with reg.14. An election was called at 2pm on a day, with voting to be completed by 5pm, when it knew that an employee would be absent till the next day, without showing any good reason why it could not have waited for him to return. The result was that one employee was clearly elected, but there was a tie for the next of two posts. Rather than telling any of the employees or candidates about this, the manager chose one of them. The Employment Tribunal held this unfair: an argument on appeal that this decision was perverse was rejected. However, the ET erred by saying that the circumstances were less serious than those in the case of Todd v Strain (as they plainly were) yet awarding the same level of award as had been made in that case; by approaching the award as compensation, rather than as a punitive award; and being manifestly excessive for the fault of the employer which could not be characterised as severe. It had distinguished between Mr Langdon and Mr Brolly by holding that in one case only one of the reasons for liability applied, whereas in the other both did (demonstrating an erroneous compensatory approach), but there was no cross-appeal from Langdon, and the award (2 weeks’ pay) was not manifestly excessive in his case and so should stand. In the case of Brolly, 7 weeks pay was reduced to 3: as it happened, to a figure only 3p different from that awarded to Langdon.
Langstaff P J
[2013] UKEAT 0059 – 12 – 2103
Bailii
England and Wales
Updated: 30 October 2021; Ref: scu.509322
