Case 1402342/2021 · Employment Tribunal
Ms B Alexander (1) - 1402342/2021 Mr A Alexander (2) - 1402343/2021 Miss M Alexander (3) - 1402344/2021 v Ms S Alexander and 2 others — 2022
- Case reference
- 1402342/2021
- Decision date
- 29 April 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Cuthbert Appearances
Parties
4 namedClaimant
Ms B Alexander (1) - 1402342/2021 Mr A Alexander (2) - 1402343/2021 Miss M Alexander (3) - 1402344/2021
Key findings
Tribunal's reasoningThe tribunal first dealt with a preliminary issue about whether Mr Paul Johnson was properly a respondent. It held that St Kitts Herbery was a partnership at will under the Partnership Act 1890, and that the partnership law provisions meant Mr Johnson remained an appropriate respondent alongside Ms Susan Alexander, even though the tribunal found he had played a negligible role in the business between November 2020 and March 2021.
On the core factual dispute, the tribunal found that St Kitts Herbery ceased trading on 15 March 2021 and Kitty's Herbery Ltd began trading on 16 March 2021. Applying the TUPE authorities it had set out, including the Spijkers multifactorial approach and the Cheeseman guidance, it found that there was a transfer of a stable economic entity: the same type of business continued from the same family property, with the same or very similar products, the same customer base, minimal interruption, and the key employees operating the new business. The tribunal therefore held that the claimants' contracts of employment transferred automatically to Kitty's Herbery Ltd under regulation 4 of TUPE.
Because of that transfer, the tribunal held that the redundancy payment, notice pay and holiday pay claims against the respondents had to fail and were dismissed. It also rejected the proposition that there had been an effective dismissal by Ms Alexander before the transfer; if there had been one, the tribunal said it would in any event have been because of the transfer within regulation 7 of TUPE. The tribunal further found that there was no evidence of any later transfer to Mr Johnson's company, St Kitts Limited.
The tribunal also said that, if it had been wrong about TUPE, it would have found that the employment ended by mutual agreement with Ms Alexander rather than by a unilateral dismissal. The unlawful deductions claim was not properly particularised, was really directed to tax and national insurance treatment of sums paid during furlough, and was withdrawn during closing submissions. No monetary award was made.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Redundancy | Dismissed because the tribunal found the claimants' employment transferred automatically to Kitty's Herbery Ltd under TUPE on 15 March 2021, so there was no termination by SKH giving rise to redundancy liability. | Dismissed | — | — |
| Breach of contract | Notice pay claim dismissed for the same reason as the redundancy claim: the tribunal found a TUPE transfer to Kitty's Herbery Ltd and, alternatively, that any ending of employment was by mutual agreement rather than a unilateral dismissal by SKH. | Dismissed | — | — |
| Holiday pay | Dismissed because the tribunal found no termination by SKH before the TUPE transfer to Kitty's Herbery Ltd, so the claimants' holiday-pay claim against the respondents could not succeed. | Dismissed | — | — |
| Unlawful deduction from wages | The tribunal recorded this claim as unparticularised and said it was really about tax and national insurance treatment of sums paid during furlough. It was withdrawn during closing submissions and not determined on the merits. | Withdrawn | — | — |
Legal tests applied
8 references- Partnership Act 1890 partnership at will and partner liability
- Cheeseman v Brewer guidelines
- Spijkers multifactorial approach
- s.136(1) ERA 1996 dismissal definition
- s.139 ERA 1996 redundancy definition
- TUPE Regulations 3, 4 and 7
- Scott v Coalite Fuels and Chemicals Ltd burden of proof
- Morris v London Iron and Steel Co Ltd on proof of dismissal
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
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