This authority simply confirms that where an ET makes an award of compensation against the transferor and transferee for a failure to consult it has no power to apportion liability between them under Reg 15(9) (Todd v Strain applied).
The Facts
The employee transferred from N to CW on 31 August 2011. N failed to inform and consult or elect an employee representative before the transfer. N became insolvent after the transfer. The ET apportioned liability for the award so that CW was ordered to pay all the compensation to the employee for the failure to consult.
The EAT
Held that there was no power to apportion the award and that this was a matter for the civil courts under the Civil Liability (Contribution) Act 1978. (However, note that on this point this appears difficult in light of paragraph 24 of Brennan v Sunderland City Council [2012] ICR 1183).
Note there is an error in the official transcript which refers to Reg 59 of TUPE rather than Reg 15(9)