Case 1403644/2018 · Employment Tribunal
- IN PERSON FOR THE v - Mr R Casey — 2020
- Case reference
- 1403644/2018
- Decision date
- 27 January 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Livesey
Parties
2 namedClaimant
- IN PERSON FOR THE
Respondent
Key findings
Tribunal's reasoningThe claimants were employed at The Plough Inn under Ms Casey's tenancy at will. In July 2018 it had been anticipated that the business would transfer to Messrs Murphy and Mills after refurbishment, and Ms Casey had been told that the arrangement would amount to a TUPE transfer. The position changed when asbestos was discovered and the planned transfer was put on hold, but the tribunal found that the claimants were not told that the transfer would not proceed. On 4 September 2018 EI/Beacon told Ms Casey and the claimants that TUPE would no longer apply, and proceedings were issued on 8 October 2018.
The tribunal held that there was a relevant transfer within regulation 3(1)(a) TUPE 2006. Applying the Spijkers factors as discussed in Cheeseman and others v R Brewer Contracts Ltd, it found that the economic entity retained its identity because the same public house business resumed from the same premises after the closure. The tribunal accepted that the date of transfer was 12 October 2018, when Mr Murphy took a tenancy at will, but held that the transfer was effected by a series of transactions within regulation 4(3), beginning with Ms Casey relinquishing the tenancy on 24 July 2018. The claimants were employed immediately before the first transaction and were assigned to the organised grouping of workers at that point, so their employment transferred by operation of TUPE.
The tribunal found that the failure to engage the claimants on 12 October 2018 amounted to dismissal and that the sole or principal reason for dismissal was the transfer. It therefore upheld the unfair dismissal claim against Mr Murphy (R3). It also upheld the claims for unpaid wages, unpaid holiday pay and unpaid notice pay against R3. The redundancy pay claim failed because the tribunal found that the claimants were not dismissed by reason of redundancy.
Claims against The Plough Inn (R1), Ms Casey (R2) and Mr Mills (R4) were dismissed. The tribunal also directed that the case be listed for a telephone preliminary hearing to give directions on remedy.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Upheld against R3 (Mr Murphy); the claims against R1, R2 and R4 were dismissed. | Upheld | — | — |
| Unlawful deduction from wages | Upheld against R3 in relation to unpaid wages; the claims against R1, R2 and R4 were dismissed. | Upheld | — | — |
| Holiday pay | Upheld against R3 in relation to unpaid holiday pay; the claims against R1, R2 and R4 were dismissed. | Upheld | — | — |
| Breach of contract | Upheld against R3 in relation to unpaid notice pay; the claims against R1, R2 and R4 were dismissed. | Upheld | — | — |
| Redundancy | Dismissed because the tribunal found the claimants were not dismissed by reason of redundancy. | Dismissed | — | — |
Legal tests applied
10 references- Spijkers tests
- Cheeseman and others v R Brewer Contracts Ltd
- Celtec v Astley
- reg 3(1)(a) TUPE 2006
- reg 4(3) TUPE 2006
- reg 7 TUPE 2006
- Kavanagh and others v Crystal Palace FC Ltd
- Wood v Caledon Social Club
- Alno v Turner
- Housing Maintenance Solutions Ltd v McAteer and others
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.
- Open official judgment 1 PDF on gov.uk
- Open official judgment 2 PDF on gov.uk
- Open official judgment 3 PDF on gov.uk
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
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