Mr S Radcliffe v Clugston Construction Limited – in administration and 2 others — 2021

Mr Radcliffe had been employed by Clugston Group since 2007 as managing director of Clugston Construction. After the 28 March 2018 restructuring, he was seconded to lead the EfW division and that arrangement was extended beyond the original six months. The tribunal accepted his evidence that, by the later part of 2019, most of his working time was devoted to EfW and his wider role in Clugston Construction had substantially reduced.

Applying TUPE regulation 4 and the authorities it cited, including Albron and Botzen, the tribunal held that the fact that the claimant's contract was with Clugston Group rather than Clugston Construction did not prevent him being treated as employed by the transferor for TUPE purposes. It found that, by 6 December 2019, he was firmly and principally within the EfW business, his temporary secondment had become permanent in practice, and the level of his remuneration did not break the link between him and the transferring economic entity.

The tribunal therefore found that Mr Radcliffe was assigned other than on a temporary basis to the organised grouping of resources that transferred to CNIM UK, and that he was employed by the transferor immediately before the transfer. It recorded, however, that the separate question whether his dismissal on 6 December 2019 was for the transfer as its sole or principal reason remained to be considered at a later hearing. The judgment also noted that the protective award issues were not finally resolved in this decision.