Claimant v Chun v The Dapper Clinic Ltd — 2023

The tribunal upheld the claimant’s claim for unlawful deductions from wages. It recorded that the claim concerned non-payment of wages for September 2021 and for the period between January 2022 and January 2023, and that it was accepted the claimant had done the work claimed and was entitled to be paid. The respondent’s position was that the claimant was a freelancer who should submit invoices before payment, while the claimant maintained that he was an employee.

The main issue was the claimant’s status and whether his employment had transferred under TUPE from Genco Male Emporium Limited to the respondent. The tribunal applied Regulation 3(1)(a) TUPE and the going concern analysis, noting that a transfer can occur where an economic entity retains its identity after the transfer. It also referred to Secretary of State for Trade and Industry v Cook [1997] IRLR 150.

The tribunal found that there had been a TUPE transfer of the male grooming business in Chiswick to the respondent. In reaching that conclusion it relied on the continuity of the business, including that the respondent took over the business before the move to new premises, that chairs and the brand name were transferred, that goodwill was transferred, and that the marketing was directed at the same clients. It also found that the new salon was in the same street, used the same branding, some personnel continued to work there, and the activities before and after the transfer were sufficiently similar.

Because TUPE applied, the claimant’s employment transferred automatically to the respondent on his existing terms and conditions, and amounts due from the transferor became payable by the transferee. The respondent did not challenge the amount claimed, and the tribunal awarded £7,720 in respect of arrears of pay. The judgment also records that an attempted post-hearing amendment to add notice pay was refused, but that was not part of the final determination.