Recent Posts - TUPE

June 29, 2015
by Jeffrey
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Jakowlew v Nestor Primecare Services EAT – 16 June 2015

Can the client in a Reg 3(1)(b) Service Provision Change determine who is assigned to the organised grouping? In Robert Sage t/a Prestige Nursing v O’Connell the EAT had held that the issue is to be determined by asking the question: Where would the employee be required to work immediately before the transfer? This case essentially asks the same question but comes to a different conclusion on the facts.

The Facts

S was a contractor who employed the claimant providing cares services. E was the client. The contract came to an end on 30 June 2013 and W took it over from 1 July 2103. The claimant was told that her employment would transfer from S to W. However, from February 2013, the claimant had, with two others, been suspended from her employment with S for disciplinary reasons. The contract between S and E provided that E had the right to reject staff whom it considered unsuitable for the duties proposed. E was concerned about the continued employment of the suspended employees, including the claimant, on the contract and informed S on the 19 June that it wished to have them removed from it. S objected to this and told E that it was disputing the lawfulness of the demand. On the 27 June, 3 days before the transfer, the Claimant was disciplined and given a final written warning. Initially the claimant was informed by both S and W that she had transferred. However, E maintained its stance and by late July both S and W accepted that she had not transferred and she was made redundant by S in September 2013. The Claimant claimed that she was assigned to the organised grouping of employees that had transferred from S to W.

The ET judgment

The ET held that because E had requested the claimant’s removal from the contract prior to the transfer, this had the effect that as at the date of the transfer she was not assigned to the organised grouping.

The EAT Judgment

The claimant appealed on the basis that the EJ was wrong to treat the decision of E that it did not want to have the claimant on the contract as conclusive. Essentially, she advanced the case that as at the date of the transfer the matter was still in dispute as S had not accepted that E’s request was well founded (although it subsequently did so).

The EAT held, allowing the appeal, that the ET had erred in treating E’s decision as determinative. As at the date of the transfer the Claimant was no longer suspended and S had not accepted E’s demand to remove her from the contract (as happened in Robert Sage). The EAT observed that in a case where the client demanded the removal of the employee from the contract the contractor may accept this, in which case the employee would not be assigned. It may, albeit at risk of being in breach of contract with the client, insist on the employee working on the contract. It may protest and excuse the employee’s attendance on the contract whilst doing so. In the latter two scenarios the employee would remain assigned.

In reaching its decision the EAT distinguished Robert Sage for three reasons: (i) in this case S did not accept the client’s demand for the employee to be removed from the contract. (ii) The claimant was a manager and not the person providing care to a specific patient. (iii) Here the disciplinary proceedings had concluded whereas in Robert Sage they had not.

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June 8, 2015
by Jeffrey
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Jinks v London Borough of Havering EAT – 4 June 2015

This case concerns the meaning of ‘client’ and ‘contractor’ within Reg 3(1)(b) Service Provision Changes.

The Council owned a car park adjacent to Romford Ice Rink. It contracted the management of the car park to S Ltd. S Ltd sub contracted the management to R Ltd. The Ice Rink closed in mid April 2013 and at the end of April 2013 S Ltd gave up the site to the Council who took control of it and closed the car park. It then licenced the car park to an NHS Trust for a short period before converting it after a few months for public use. C was initially employed by S Ltd but from mid April 2103, i.e before the putative transfer, his employment transferred to R Ltd. His case was that his employment had transferred to the Council when the Council took the management of it back in house.

The ET Decision

The EJ struck out the C’s claim on the basis that the Council was never R Ltd’s client. R Ltd’s client, he held, was S Ltd. It was S Ltd on whose behalf R Ltd, as contractor, were operating the car park. Consequently only S Ltd could be the client for the purposes of Reg 3(1)(b).

The EAT decision

In order to succeed on his appeal and proceed with his claim C had to show an arguable case that the Council was R’s client. The EAT (Mr Recorder Luba QC) first noted that the definition of ‘contractor’ in Reg 2(1) included sub-contractors. He then noted and restated that the activity before and after transfer must be undertaken for the same client. (see SNR Denton v Kirwan and Hunter v McCarrick).

The EAT held that the question that had to be answered was, prior to the alleged transfer, on whose behalf was R Ltd operating the car park. Could it have been the Council? The fact that R Ltd did not have a contract with the Council was, relevant, but not determinative, of this issue. There could in an SPC where there was more than one client. This principle together with the extended definition in Reg 2(1) which defined contactors to include sub contractors was sufficient to establish that the case that the true client was the Council was arguable and should not have been struck out.

Comment

The recent case law (see also Ottimo Property Services v Duncan) on the meaning of ‘client’ demonstrates that the SPC provisions may have wider reach than previously assumed. In particular, a careful analysis of on whose behalf it is that the transferred activity is being undertaken is required.

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May 18, 2015
by Jeffrey
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NHS Direct NHS Trust v Gunn EAT – 14 May 2015

This case raises an interesting point on the relationship between discrimination under the Equality Act 2010 (‘EA’) and TUPE. Put shortly what happens if the transferee, before the transfer, indicates that it will not honour reasonable adjustments made by the transferor in respect of an employee who it is intended would ordinarily transfer? Can the employee who objects to the transfer bring a discrimination claim on the basis of being job applicant?

The Facts

The employee had rheumatoid arthritis and was disabled within the meaning of the EA. She worked 8.5 hours per week for the transferor, Shropshire Doctors. The service to which she was assigned and operated by Shropshire Doctors was due to transfer to NHS direct in March 2013. NHS direct required its staff to work at least 15 hours per week. The employee offered to work 10 hours. This was rejected. In light of this refusal and NHS Direct’s decision not honour the adjustments that had been made she objected to the transfer under Reg 4(7) and remained employed by Shropshire Doctors in an alternative and less well remunerated post.

The employee then brought a claim against NHS Direct for failure to make reasonable adjustments. NHS Direct applied to strike out the claim on the grounds that she did not fall within any of the classes of individuals entitled to bring a claim under the EA. The employee relied on s. 39(1) of the EA which provides that it is unlawful to discriminate against job applicants in the arrangements the employer makes for deciding whom to offer employment; as to the terms on which to offer employment and; by not offering employment.

ET Judgment

The ET dismissed the application to strike out and held that the offer to employ the employee if she worked 15 hours per week was an offer of employment.

EAT judgment

NHS Direct appealed to the EAT on the grounds that: (i) As the employee had objected to the transfer her employment never transferred. (On a plain reading of Reg 4(7) that is correct). (ii) That a transfer under TUPE could not amount to an offer of employment. (iii) That the transferee was obliged to accept the contract as it was and therefore there could be no possibility of an offer on different terms. In short it was essentially saying that the employee had made a mistake by objecting as she had put herself in worse position than she would have been had her employment simply transferred when NHS direct, as the transferee, would then have been obliged to honour her contract.

The EAT was initially in agreement with NHS Direct however, having retired to consider judgment, it came across a letter from the transferee which was to the effect that the employee’s post was to be made redundant and that the offer of the post with NHS Direct was suitable alternative employment. The EAT considered that this amounted to an offer of employment. After hearing further argument it held that the letter did indeed amount to an offer of alternative employment and therefore the employee could bring a claim under s. 39(1) of the EA.

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March 20, 2015
by Jeffrey
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Secretary of State for BIS v Dobrucki EAT – 3 February 2015

This case concerns TUPE and insolvency and more particularly whether the Secretary of State is liable for debts that accrue after the date of transfer.

There are essentially two forms of insolvency proceedings catered for in Reg 8 of TUPE. Reg 8(7) applies where the transferor is subject to proceedings analgous to bankruptcy proceedings that are instituted with a view to the liquidation the assets of the transferor and are under the supervision of an insolvency practitioner. This essentially deals with cases where the transferor’s business cannot be saved and will be wound up. Reg 8(1) to (8(6) are concerned with cases where the transferor is subject to insolvency proceedings which are opened not with a view to the liquidation of assets – essentially in a corporate context this means administration.

In an ordinary case Reg 4 has the effect that any debts owed by the transferor to employees transfer to the transferee on transfer. In Reg 8(7) cases employee debts do not transfer from the transferor to transferee as Reg 4 is disapplied. Therefore the transferee takes the business free of any debts owed to employees. In Reg 8(1) to 8(6) case the transferee is not liable for sums due to employees under Part XII of the Employment Rights Act 1996 but is liable for sums owed in excess of those due under Part XII.

The Facts

Response FM was a motorway maintenance company went into administration on the 14 June 2011. (This was therefore a Reg 8(1) to 8(6) case.) Two hours later the business was sold to the majority shareholder, WS, an individual and the transfer occurred at that date. Three days later, on the 17 June, the business ceased to trade. There was no evidence as to whether WS was insolvent or bankrupt. The employees brought claims under Part XII of the ERA in respect of unpaid holiday pay, notice pay and redundancy payments. There was no dispute that BIS was liable to pay sums due under the statutory schemes as at the date of transfer. At issue was whether BIS were also due to pay sums due to employees as a consequence of their dismissal three days later.

The ET decision

The ET held that whilst WS was prima facie liable to pay the sums due and owing in respect of the 3 days after the transfer, BIS was also liable. It reached this decision because of the wording of Reg 8(3) which provides that Part XII of the ERA “shall apply in the case of a relevant employee irrespective of the fact that the qualifying requirement that the employee’s employment has been terminated is not met and for those purposes the date of the transfer shall be treated as the date of the termination and the transferor shall be treated as the employer”. The ET held that this had the effect that debts accrued after the transfer date were to be treated as if they were incurred on the transfer.

The EAT decision

The EAT , Langstaff P, allowed the appeal. It held, following Pressure Coolers v Malloy (2012), that Reg 8(3) did not have the effect that the statutory scheme under Part XII of the ERA applied to any relevant employee whose employment had not in fact been terminated at the date of transfer. Its purpose was to adapt Part XII to to achieve the policy behind Reg 8 which is to promote the rescue culture by minimising the burden on transferees acquiring insolvent businesses. Its effect is to freeze liabilities as at the date of transfer. It followed that liabilities that have accrued after the date of transfer were the responsibility of the transferee and not BIS.

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March 10, 2015
by Jeffrey
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Ottimo Property Services Ltd v Duncan EAT – 10 March 2015

The issue in this case is whether the word ‘client’ in Reg 3(1)(b) is to be understood as referring to the singular or whether it could refer to more than one client.

The Facts

D was employed by Chainbow as a site maintenance manager on an estate comprising 12 residential blocks at Britannia Village (‘BV’). Each residential block had a separate management company and each was a separate legal entity. in 2007 Chainbow had maintenance contracts with 11 of the 12 residential blocks. One block, BV 11, contracted with another maintenance company. In 2009 to 2011 3 other blocks moved their maintenance contracts away from Chainbow to other providers. In February 2012 Chainbow were acquired by Trinity who in turn subcontracted the work to Ottimo. D’s employment transferred to Ottimo. By 2012, other blocks had moved away from Chainbow/Ottimo such that Chainbow/Ottimo were contracted with 6 blocks, BV 1, 3, 5, 6, 7, 10 and the company, BVG which looked after the communal areas of the estate. In May to August 2012 Warwick acquired the contracts for blocks 1,3, 5, 6 and 7. Warwick refused to take on D as it considered TUPE did not apply.

The ET Judgment

The ET, having rejected a Reg 3(1)(a) old style transfer then considered whether this was a Reg 3(1)(b) SPC. The ET considered that because each of the blocks was a separate client then there was no organised grouping that had as its principal purpose the carrying out of the activities for the particular client. Rather D carried out activities for a range of clients (i.e. each of the blocks). Further D was not assigned to any of the contracts.

The EAT Judgment

HHJ Eady QC held:

(1) Although the identification of “the client” for the purposes of Reg 3(1)(b) has been the subject of earlier consideration in the case-law, none of those cases had to expressly address, on the facts, the question whether – allowing no changes in the end users before and after the SPC – the client had to be understood solely in the singular or whether the regulation could allow for there to be – providing they remained identical – more than one client.

(ii) That ‘client’ could include more than one person and that some contractual scenarios a group of different entities may be defined as the client’. Such clients would have to retain their identity before and after the SPC, but, the fact that the service is provided to more than one legal entity does not necessarily mean there cannot be a SPC transfer.

(iii) Allowing that “the client” may comprise more than one legal entity – and so, might more properly be described as “the clients” – there must be some link, some commonality, between them, to permit the identification of intention for Reg 3(3)(a)(ii) purposes. That will be all the harder to demonstrate where there is no umbrella contract defining “the client”. That does not mean that there must be a single contract between the legal entities comprising the client, or clients, and the contractor. There must, however, be an ability to ascertain a common intent.

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March 5, 2015
by Jeffrey
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Marshall v Game Retail Ltd EAT – 5 March 2015

This case provides a useful reminder of where the burden of proof lies and how it operates in cases of TUPE related automatic unfair dismissal.

The Facts

The Claimant worked for Game Stores Plc as Group Finance Director. On 26 March 2012 Game appointed administrators. On the same day one of the administrators informed Head Office staff, including the Claimant, that they would be made redundant. Six days later on the 2 April the business was transferred to Baker Acquisitions Ltd (which was later renamed Game Retail Ltd). It was not in dispute that this was a transfer to which TUPE applied. The Claimant claimed he had been dismissed for a reason connected to the transfer A Mr B was who was directly below the Claimant was appointed as Finance Director. His salary had been much lower than the Claimant’s. Neither party called the administrator who had taken the decision to dismiss the Claimant to give evidence which the EJ observed was an ‘evidential gamble’. In dismissing the Claimant’s claim the EJ held:

“Cogent arguments have been made on behalf of both parties why the sole or principal reason for the claimant’s dismissal was or was not the transfer itself. One could endlessly speculate as to the motives and the reason of the person who made the decision to dismiss the claimant. However, bearing in mind the burden of proof is on the claimant to show that the sole or principal reason for his dismissal was the transfer itself or a reason connected with the transfer I conclude that the claimant has not made his case out. There is insufficient evidence to say on the balance of probabilities that the sole or principal reason for his dismissal was the transfer itself or a reason connected with the transfer.”

The Claimant appealed the decision on the grounds that the EJ had erred in applying the burden of proof.

The EAT Judgment

The EJ was not referred to Kuzel v Roche Products Ltd (2008) CA which sets out the approach for the burden of proof in cases of automatic unfair dismissal. Essentially this (applied to a TUPE case) means:

there was a burden on the Claimant in the present case to produce some evidence supporting his case that his dismissal was by reason of or connected with the transfer;
once that stage had been reached, it was for the Respondent to prove that the reason or principal reason for the dismissal was the different reason on which they relied.
If the Respondent failed to do so, then it would be open to the EJ to find that the reason was the inadmissible reason on which the Claimant relied. That would often be the consequence of a failure of that type; but it was not in law a necessary consequence of such failure. The EAT held that the passage set out above in the ET decision displayed an error of law and the EJ had not properly applied the burden of proof, whilst at the same time observing that it was a rare case which would turn on the burden of proof but this was one such case.

The EAT held that the passage set out above in the ET decision displayed an error of law and the EJ had not properly applied the burden of proof as the Claimant had adduced some evidence in support of his case that the dismissal was for a reason connected to the transfer. The EAT observed that it was a rare case which would turn on the burden of proof but this was one such case.

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February 16, 2015
by Jeffrey
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Rynda (UK) Ltd v Rhijnsburger Court of Appeal – 12 February 2015

Was a single employee an organised grouping within Reg 3(3)(a)(i)?

The Facts
From May to October 2009 the employee was employed by DJ under a 6 month fixed term contract to manage premises in the Netherlands for one of DJ’s clients. From October 2009 she took on an associate role for DJ solely managing a portfolio of Dutch properties and also took on responsibility for the management of the office dealing with German properties for H2O which she did with others. From March 2010 after a period illness and when the employee returned to work it was decided she would be confined to the managing the Dutch portfolio. She was the only employee doing so. On 1 April 2010 her employment transferred to DJD. At the end of 2010 the Respondent assumed responsibility for managing the Dutch portfolio. The employee’s employment ended with DJD on 31 December 2010 and began employment with the Respondent on 1 January 2011. She was dismissed in September 2011 and the Respondent sought to argue that she had insufficient continuity of service as there has been no TUPE transfer to it in January 2011 because at that time she was not part of an organised grouping that had as its principal purpose the carrying out of activities on behalf of the client, H20.
The ET held that the employee, albeit on her own, was an organised grouping that carried out the activity of property management services of the H20 properties in the Netherlands. This was not the product of accident or happenstance but was the product of a deliberate decision taken by DJD before the transfer there was therefore a service provision change with Reg 3(1)(b). This was upheld by the EAT (see commentary here)

The Court of Appeal Judgment

The Court of Appeal upheld the decisions of the ET and EAT. At para 44, Jackson LJ stated:

I would summarise the principles which emerge from the authorities as follows. If company A takes over from company B the provision of services to a client, it is necessary to consider whether there has been a service provision change within regulation 3 of TUPE. The first stage of this exercise is to identify the service which company B was providing to the client. The next step is to list the activities which the staff of company B performed in order to provide that service. The third step is to identify the employee or employees of company B who ordinarily carried out those activities. The fourth step is to consider whether company B organised that employee or those employees into a “grouping” for the principal purpose of carrying out the listed activities.

Comment

With respect to the Court of Appeal whilst this guidance may be useful for answering the question of whether there is an organised grouping and principal purpose (the point in issue in the case) it is inadequate for determining whether there is an SPC. It does not address the other issues that commonly arise in an SPC case such as; whether the activities are fundamentally the same before and after transfer; whether the client intends that the transferee, post-SPC, will not carry out the activities in connection with a single event of short-term duration; whether the activities are wholly or mainly the supply of goods (rather than services) for the client’s use; and (although this is touched on) the complexities that arise in determining whether the employee concerned is assigned to the organised grouping. The guidance is also unhelpful because the first stage must be to determine whether or not the activities carried out before the transfer are fundamentally the same as that after the transfer. (It should be noted that ‘the service’ may not be the same as ‘the activities’. ) Only once this is done is it necessary to consider whether there is an organised grouping The more comprehensive guidance of HHJ Clark in Enterprise Management Ltd v Connect-Up Ltd is likely to prove more useful in practice.

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January 23, 2015
by Jeffrey
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Salmon v (1) Castlebeck Care (Teesdale) Ltd EAT – 21 January 2015

This case is concerned with what happens when an employee is dismissed before the transfer but a successful appeal is heard after the transfer, with the complicating features being that the transferee heard the appeal and did not inform the employee that she had been successful.

As matter of logic (and indeed law (see G4S v Anstey)) one might expect that if a successful appeal is heard, the contract is revived as from the date of dismissal and the employee transfers to the transferee as she would have done had she not been dismissed. Reassuringly that was the outcome of this appeal after the complicating features had been disposed of.

The Facts

Three employees of the transferor, CCT, were dismissed on 10 July 2013 for gross misconduct. The transfer to DHC occurred on the 4 September 2013. One employee’s appeal was heard before the transfer and the appeals of two others were heard after the transfer. The decision in the case of the appeal heard before the transfer was not announced because it was decided that the decision in relation to all three employees would be announced together. The managers who heard the appeals had transferred from CCT to DHC as would the employees had they not been dismissed. One of the employees had their appeal dismissed. In the case of two others, Mrs Snape and Mrs Salmon, their dismissals were deemed to be unsafe by the managers who heard the appeals. Neither Mrs Snape or Mrs Salmon were told of the outcome of their appeals but DHC arranged for them to meet an employment consultant who was acting, in relation to employment matters, on behalf of CCT who were then in administration for the purposes of agreeing settlement agreements. The meeting did not take place. Claims were then brought for unfair dismissal against CCT and DHC.

The ET Decision

The EJ held that that the claim against CCT succeeded but that against DHC failed for essentially two reasons: (i) There had been no decision to reinstate either Mrs Salmon or Mrs Snape following their appeal (the only decision being that the dismissals were unsafe) and therefore they had not in fact been successful in their appeal. (ii) No decision to reinstate had been notified to either Mrs Salmon or Mrs Snape. (Succeeding against CCT was because of its insolvency significantly less advantageous that succeeding against DHC. Mrs salmon appealed.)

The EAT Decision

The EAT (Langstaff P) started by restating the following: (i) The effect of a successful appeal is to revive retrospectively the contract of employment (Roberts v West Coast Trains Ltd (2004). (ii) A successful appeal does not require a separate decision on reinstatement. Reinstatement is implicit in, and follows, a successful appeal automatically (McMaster v Antrim BC (2010).

The EAT then held:

(i) The disciplinary appeals of Mrs Salmon and Mrs Snape had plainly succeeded – that could be gauged by the clear rejection of the appeal in the case of the third employee.

(ii) It was unnecessary for the employee to be informed of that their appeal had succeeded in order to be reinstated because the contract revived automatically on the decision that appeal succeeded.

(ii) Following G4S v Anstey the effect was that the Mrs Salmon’s employment was revived as from the date of dismissal and it then transferred to DHC and her claim should have succeeded against it and not CCT.

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December 22, 2014
by Jeffrey
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London Borough of Hillingdon v Gormanley EAT – 19 December 2014

In service provision change cases once an organised grouping of employees is established, the next issue is to determine whether the claimant employee is assigned to that organised grouping (a pre requisite to liabilities transferring under Reg 4). This case is concerned with assignment. The approach to assignment is the same whether under a Reg 3(1)(a) transfer or a Reg 3(1)(b) transfer.

The ET decision

The Claimants, along with several other employees, worked for RG Ltd. RG Ltd carried out repair and maintenance work on LBH’s housing stock. In November 2012 LBH told RG Ltd that they were no longer going to receive any work and also that TUPE did not apply. All of the employees of RG Ltd issued claims in the ET and all except the Claimants’ claims were settled.

The EJ at a pre-hearing review (“PHR”) held that there was an organised grouping subject to a transfer by reason of an SPC. On the main hearing a a different Judge held that, in deciding that an organised grouping existed at the PHR, the EJ had also held by inevitable implication that the the Claimants were assigned to it. The issue was res judicata. In case he was wrong about that, he held that they were assigned anyway because the Claimants were part of a group which worked almost exclusively for LBH. Their other tasks were negligible.

EAT Decision

The EAT allowed LBH’s appeal.

First, the EJ at the PHR had not decided the assignment question. The issues of organised grouping and assignment were separate: Edinburgh Home-Link Partnership and ors v The City of Edinburgh Council.

Secondly, insufficient findings of fact had been made to determine whether the Claimants were “assigned” to an organised grouping. In particular it had made no findings of fact about the contractual obligations of the Claimants or the organisational structure of RG Ltd. The EAT referred to the decisive criterion under Botzen v Rotterdamsche Doogdok Maatschappij BV [1985] ECR 519 of whether the grouping “formed the organisational framework within which their employment took effect”. The EAT observed that one relevant factor was “what duties the Claimants could be called upon to perform under their contracts as well as those which they were actually performing at a particular moment in time”. The Council’s case was that the Claimants were, at the time of the transfer, preoccupied with the Council’s contracts, but that was because RG Ltd were commercially reliant on those contracts and not because performing those contracts defined the organisational framework of their employment.

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November 24, 2014
by Jeffrey
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Eville & Jones (UK) Ltd v Grants Veterinary Services Ltd ET – 27 August 2014

This is an Employment Tribunal decision and therefore has no value as precedent but it is a rare reported case regarding the failure by a transferor to provide the necessary employee liability information (‘ELI’) under Reg 11 and a claim under Reg 12.

The Facts

Grants provided inspectors to the Food Standards Agency under a contract that expired on 1 April 2012. The contract was put out to tender and EJ Ltd were successful. 131 of Grants employees were to transfer to EJ Ltd. Grants were in financial difficulties. There had been the involvement of insolvency practitioners and a winding up petition issued but not presented in the period leading up to March 2012. In March the bank account was frozen. On 27 March the MD of Grants informed employees that their salaries which were due to be paid on the 30 March 2012 (i.e. before the transfer) would not be paid until 5 April 2012 (after the transfer). Grants told EJ Ltd that it would nevertheless honour the obligation to pay. It did not do so leaving EJ Ltd with the liability (of around £400k) arising out of the unlawful deduction of wages with EJ Ltd

The claim in the ET was brought under Reg 12. Reg 11(2)(d) requires the transferee to notify the transferor of claims or potential claims by employees. Reg 12(3) provides that if a complaint of a failure to provide ELI is well founded it may make an award of compensation to be payable by the transferor to the transferee. The amount of compensation is to be that which the ET considers is just and equitable (Reg 12(4)) and will not be less than £500 per employee unless the ET considers it just and equitable to award a lesser sum.

The ET judgment

The ET made the minimum award of £500 per employee which gave a total award of £65,500. There is some interesting analysis in the decision. First the ET held that even if EJ Ltd had been told 14 days before the transfer that the transferring employees were not going to be paid there was very little it could have done about it. It could have involved the Food Standards Agency but there was no evidence that the FSA could done anything and EJ Ltd was already bound by contract to provide the service from the 2 April 2012. EJ Ltd had however incurred substantial management costs in the order of £42,400 together with some modest legal and banking costs and for this reason the ET was not prepared to reduce the award of £500 per employee.

Comment

Readers may find it useful to also see how another ET dealt with same issue in Paul v PFGPS Ltd. In that case compensation for the actual loss sustained by the transferee was awarded.

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