Ms S Aly, Counsel For the v Capita plc — 2023

At the open preliminary hearing on 11 July 2023, Employment Judge Brown dealt with employer and respondent identity, whether Ms R Brar's employment had ended, and the effect of the 1 April 2023 service transfer back to the London Borough of Barnet. The tribunal recorded that the underlying proceedings included claims of direct race and sex discrimination, harassment related to race and sex, equal pay, victimisation, and a separate unfair dismissal claim, but no merits findings were made on those claims at this hearing.

The tribunal found that Ms Brar was employed by Re (Regional Enterprise) Limited from 1 October 2013. Although her 9 January 2017 contract used Capita branding and referred to the Capita group, its express terms stated that Re employed her and that her continued employment was with Re. The tribunal accepted the Capita group explanation for the branding, group HR involvement, and central payroll, and held that those matters did not displace the contractual wording.

On the TUPE issue, the tribunal held that Ms Brar did not validly object to the 1 April 2023 transfer to Barnet. Her emails of 27 and 31 March 2023 expressed a wish to remain with Capita while her grievance and tribunal proceedings were ongoing, but the tribunal concluded that this was not an objection within regulation 4(7) TUPE 2006 and that no agreement was reached allowing her to stay with Capita. Applying the authorities cited, including Hay v George Hanson, Senior Heat Treatment Ltd v Bell, Capita Health Solutions Ltd v McLean and Celtec Ltd v Astley, the tribunal held that her employment transferred automatically to Barnet on 1 April 2023 and that she continues to be employed by Barnet. It therefore held that Re (Regional Enterprise) Limited and LB Barnet were the correct respondents, removed Capita plc as a respondent, and recorded that no remedy was determined at this preliminary hearing.