TUPE

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Allen v Morrisons Facilities Limited EAT – 16 April 2014

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In this case the employees sought to bring a direct claim under Reg 15(1)(d) against the transferee for what they said was a breach of Reg 13(4).  This  requires the transferee to give such information as will enable the transferor to comply with its Reg 13(2)(d) duty – i.e. to comply with the requirement to give employees information about the measures that the transferor envisages the transferee will take after the transfer.

Reg 13(4) provides:  (4) The transferee shall give the transferor such information at such a time as will enable the transferor to perform the duty imposed on him by virtue of paragraph (2)(d).

Reg 15(1)(d)(1) Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an employment tribunal on that ground—(d) in any other case, by any of his employees who are affected employees.

The EAT Judgment

Slade J held that this ambitious claim failed for the following reasons:

Reg 13 sets out the duties on employers to inform and consult those employees who are their employees at the time.  Reg 15 provides the mechanism for making a complaint it does not impose the obligation.

Reg 13(4) does not impose an obligation on any employer towards his employees it simply requires the transferee to give the the transferor the required information.  This obligation is to be performed before the transfer to enable the transferor to give the required information to the employee representatives.  The entitlement to be provided with the information is that of the transferor not the employee.  Reg 15 does not confer any additional right on which a complaint can be found a complaint.    Furthermore it is the employee’s status at the date of the non compliance which dictates the entitlement to bring a claim.

The fact that employees subsequently transferred did not given them any right to bring a claim against the transferee for a failure to provide information to the transferor.  Even if they could have brought a claim it could only be a claim against the transferor as they were the employees of the transferor at the date of non compliance.

An order for compensation against a transferee will only be made (under Reg 15(8)(b)) if the employee establishes that the transferor is in breach of its Reg 13(2) and the transferor, in turn, shows (pursuant to Reg 15(5))  that it was not reasonably practicable for it to perform their duty because the transferee did not provide the information as required under Reg 13(4).

Link to judgment

 

 

 

 

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