(1) Ms Eileen Monaghan (2) Ms Josephine Davis (3) Mr Philip Cawley (4) Mr Patrick Moloney (5) Ms Sheridan Reay v Hm Courts & Tribunals Service (moj) and 2 others — 2021

This was a preliminary hearing before Employment Judge R S Drake sitting alone on 25 November 2021 in a multiple claim brought by former HM Courts and Tribunals Service employees against HMCTS, Marstons Holdings Ltd and CDER Group Ltd. The tribunal recorded that the transfers were accepted by all parties as a relevant transfer of a service provision under TUPE, with three claimants transferring to Marstons and the remainder to CDER. The claimants were pursuing alleged TUPE complaints and unfair dismissal claims.

The judge found that the Reg 4 TUPE complaints disclosed no cause of action and had no reasonable prospect of success from the outset. He also found that the unfair dismissal claims had no reasonable prospect of success because there had been no dismissals, save for one claimant's resignation. The tribunal noted repeated failures to provide further information, non-compliance with the orders made by Employment Judge Buckley on 11 October 2021, and the absence of engagement with the respondents.

Applying Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, and referring to Swain v Hillman on the need for a realistic as opposed to fanciful prospect of success, the judge struck out the remaining claims under Rule 37(1)(a), (b), (c) and (d). The tribunal also considered the balance of prejudice and reserved the question of costs, listing a separate costs hearing and noting the ability-to-pay factor in Rule 84.