Although a number of issues relating to TUPE were considered in this case the most significant issue, and one which will have wider application, is that the EAT held that it was not necessary for a Claimant to comply with the Early Conciliation Procedure when applying to amend an existing claim to join a Respondent. In this case the claim was issued against the transferor and a subsequent application was made to join the transferee.
C was employed as a pulmonary rehabilitation instructor for R1; she spent 80% of her time delivering service A, and the rest on service B. In January 2014 R1 lost the tendering process for delivering service A to R2. R2 was to take over the service from 1 April 2014.. C resigned on 10 April 2014 with immediate effect, there being a lack of clarity about the application of TUPE. She brought a claim against R1 for (amongst other things) constructive dismissal relating to Reg 13 TUPE, as well as a claim for failure to inform and consult under TUPE. C received R1’s Response on 26 August 2014 and applied to join R2 as a party on 1 September 2014. C was given permission to add R2 on 4 September 2014 at a preliminary hearing. R2 applied to set aside this order and another PH was held in December 2016 to determine this issue. (For the first time in the appeal R2 took points on the EC procedure including that; although C had obtained ACAS certificates for both respondents, she had not properly identified them, and; the name on the ET1 was different than the name of R1 in in the EC notification.)
The ET decision
The ET held, amongst other things, that:
- A transfer had taken place but it could not determine the date of that transfer and liabilities transferred to R2;
- Liability for breach of the TUPE consultation requirements transferred entirely to R2; and
- C had brought the claim against R2 out of time and it should be struck out.
C appealed the decision striking out her claim against R2.
R2 resisted the appeal and cross-appealed on a number of points including:
- That the ET had no jurisdiction to consider the proposed amendment because C had not complied with the mandatory requirements of EC procedure for either Respondent (in incorrectly identifying the parties by their addresses only);
- That the ET had erred in finding that R2 was solely liable for any breach of the Reg 13 consultation requirements under Reg 15, but that rather these were joint and several with R1 (C accepted this was correct at the ET had erred in this respect); and
- That the ET had erred in finding that a relevant transfer had occurred under Regulation 4 of TUPE without establishing an actual date for that transfer (and that this went to establishing relative hardship).
The EAT decision
The EAT (HHJ Eady QC) allowed the appeal and held that the decision to set aside the order joining R2/striking out the claim against R2 was perverse.
The EAT rejected the first ground of cross-appeal relating to EC procedure. It held:
- As ACAS had accepted the EC notification, any error in the name of R1 irrelevant as acceptance by ACAS was conclusive as to C’s compliance with the notification requirements.
- As the original claim against R1 had been accepted by the ET it was now too late to appeal the fact that the name on the EC certificate and the name on the ET1 were, in a very minor way, different. Also R2 could not go behind the ETs acceptance of the claim.
- The error in the name of R2 in the EC notification did not matter because C was not required to comply with EC procedure with regard to R2 since it only applied to ‘prospective’ claimants, and by this stage C had already presented her claim form.
The EAT allowed the other two grounds of cross appeal:
- It found, as was accepted by C, that the ET had been wrong to conclude that the liability under Regulation 15 of TUPE lay solely with R2, and that this was a relevant consideration when assessing the relative hardship to the parties in assessing whether to allow an amendment to join R2 out of time.
- The ET had erred in making finding that C’s employment had transferred in circumstances where it had not determined whether C was employed immediately before the transfer or would have been so employed had she not been dismissed without having determined the date of transfer first, particularly as this also went to the question of relative hardship (i.e. if there had been no transfer.