(1) Ms R Santucci (2) Ms C Thorne (3) Ms L Hamilton v S&K Fruit and Veg and 2 others — 2024

This was a preliminary hearing before Employment Judge Livesey to determine which of several named Respondents was the correct employer of the three Claimants following a TUPE transfer of a fruit and vegetable shop in Frome in March 2023. The Respondents did not attend. The Claimants clarified that they alleged the effective transferee of the Second Respondent's business was the First Respondent (S&K Fruit and Veg), a company incorporated on 3 March 2023 with the Third Respondent as sole director. The claims against the Third Respondent and the complaints of failure to provide itemised pay statements were dismissed upon withdrawal.

The Judge found that the Third Respondent had been acting for an undisclosed principal at the point of transfer, namely the newly incorporated First Respondent, which then became disclosed when the Claimants received payslips bearing its name. The Judge preferred this interpretation to the alternative of a separate, second transfer between the Third and First Respondents. Since the First Respondent had filed no response, the claims against it were capable of being finalised under rule 21.

Having heard oral evidence from each Claimant and considered the witness statements and Schedules of Loss, the Tribunal upheld each Claimant's complaints of unfair dismissal, entitlement to a redundancy payment, unauthorised deductions from wages, breach of contract in respect of notice, and unpaid holiday pay, and awarded the sums set out in the judgment. The position on the TUPE regulation 15 claim was left to be clarified by the Claimants by 7 November 2024. The recoupment regulations were stated not to apply.