Mr L Hodson v Print .Inc Group Limited AT A PRELIMINARY HEARING — 2023

This was a preliminary hearing before Employment Judge Lancaster on 23 November 2023. The tribunal was addressing, among other matters, whether Mr Hodson had been employed by Awesome Merchandise Limited immediately before the TUPE transfer to Print .Inc Group Limited and whether he had been assigned to the transferred undertaking. The tribunal applied the approach in Michael Peters Ltd v Fairfield and Michael Peters Group plc and placed the burden on Mr Hodson to prove both that he had been employed by the transferor and that he was assigned to the part of the undertaking that transferred.

The tribunal found that Mr Hodson had not produced evidence sufficient to show that he was ever an employee of Awesome Merchandise Limited. It noted that there was no written contract or statement of terms for him, that there was no documentary support for the asserted PAYE salary history, and that there was no evidence of the usual features of employment such as hours, place of work, holidays, fixed remuneration, or control. The tribunal also found that after he moved to Austin, Texas, he was removed from the payroll of Awesome Merchandise Limited and was paid through the American company, Awesome Merchandise LLC, rather than through the UK company.

The tribunal further relied on the August 2022 transaction documents and the events around the transfer. It recorded that the respondent entered into a new employment contract with Mr Hodson on 24 August 2022, that the contract showed a commencement date in 2022, and that Mr Hodson completed new starter information for the respondent, including a declaration to HMRC dated 5 September 2022 that this was his first job since 6 April. The tribunal treated these matters as inconsistent with his later assertion that he had transferred with the other employees from Awesome Merchandise Limited.

On that basis, the tribunal held that Mr Hodson had not proved that he was an employee of the transferor and therefore did not have the requisite continuous service under section 108 of the Employment Rights Act 1996. It said that any unfair dismissal claim, whatever the date of termination, was struck out. The judgment did not record any award of compensation or other monetary remedy.