Swissport Ltd v Exley and Others (Transfer of Undertakings): EAT 13 Jun 2017

EAT TRANSFER OF UNDERTAKINGS – Economic technical or organisational reason
UNFAIR DISMISSAL – Polkey deduction
The Respondent resisted claims for unfair dismissal following the loss of a ground handling contract at an airport. Grounds of resistance to ‘ordinary’ unfair dismissal claims were struck out. Economic technical or organisational (‘ETO’) and Polkey defences proceeded. A Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) assignment defence was conceded. There was no hearing of the ETO ground of resistance. The Respondent failed to establish a Polkey defence. At a Remedies Hearing the Employment Tribunal awarded compensation for future loss of the same period for six of the nine Claimants. Costs were awarded under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 Rule 76(1)(b) on the basis that the assignment, ETO and Polkey defences had no reasonable prospect of success. A ‘period’ award was made from receipt of the ET3 to the conclusion of the Polkey Hearing up to the maximum payable under Damages Based Agreements (‘DBA’) made in accordance with the Damages Based Agreements Regulations 2013 under which Claimants were obliged to pay 10% of compensation recovered for their solicitors’ services.
The Employment Tribunal did not err in holding that a ‘period’ costs award may be made when a party has entered into a DBA. CPR Rules and the indemnity principle apply. The Employment Tribunal did not err in holding that the assignment and ETO defences had no reasonable prospect of success within the meaning of ET Rule 76(1)(b). The Employment Tribunal erred in so holding in respect of Polkey. They failed to consider whether the Claimants would have continued in employment and if so on what terms (Software 2000 Ltd v Andrews [2007] IRLR 568). The Employment Tribunal erred in imposing a tariff for future loss. Remedy and application for costs remitted for rehearing.


Slade DBE J


[2017] UKEAT 0007 – 16 – 1306




England and Wales


Updated: 27 March 2022; Ref: scu.590428