Mr J Hughes First v Second Respondent: David Wood Baking Ltd Oscar Mayer Ltd t/a Rowan Food — 2022

Employment Judge C Sharp heard the matter alone in Cardiff on 20 September 2022. The claimant had been absent from work from 3 December 2019 after a cancer diagnosis, received redundancy notice on 24 September 2020 with an effective termination date of 27 November 2020, and the Flint site transferred from David Wood Baking Ltd to Oscar Mayer Ltd t/a Rowan Food on the same date. This hearing was limited to whether the claimant was part of the transferring economic entity and whether he was an affected employee for TUPE consultation purposes.

The tribunal accepted Professor Kim's evidence that, although the precise position on 27 November 2020 was uncertain because of limited clinical notes, the claimant's cancer had recurred in late October 2020 and by the transfer date it was very unlikely he would have been able to return to work for a considerable time. The judge held, applying the authorities relied on in the hearing including BT Managed Services Ltd v Edwards, that the claimant's ill-health had become so serious that he had detached from the economic entity transferring with the Flint site. The judge said that, absent the health issue, the claimant would have been part of the entity because his role was at the Flint site and others in similar roles transferred.

On the affected employee issue, the tribunal held that the relevant period was earlier than 27 November 2020 but reached the same conclusion. By 10 to 23 November 2020 the claimant had still been absent for nearly a year, his cancer had returned, and there was no evidential basis to treat him as meaningfully affected by the transfer or measures taken in connection with it. The tribunal therefore found that he was not part of the organised grouping that transferred and was not an affected employee for the TUPE consultation claim. The judgment also records that an argument that his redundancy was due to the transfer was not pleaded and was not determined, and it notes the separate Regulation 11 claim between the respondents only as likely concluded by the same finding. No remedy was awarded.