Mr G Bouchard v Facebook UK Limited — 2021

The tribunal was asked to decide a preliminary TUPE issue arising from the claimant's move from Bloomsbury AI to Facebook UK in 2018. It applied the multifactorial approach in Cheesman and the related authorities cited in the reasons, considering whether there was an economic entity in the UK that transferred and retained its identity. The tribunal accepted that Bloomsbury was an economic entity and that most of its people moved across, but found that the relevant business activity at Bloomsbury was the development and marketing of Cape and the ShARC data set, not a broad AI consultancy.

The tribunal found that Facebook did not take over Bloomsbury's tangible assets, customers, or continuing product line, and that Cape and ShARC were not continued after the move. It accepted that the former Bloomsbury staff were valuable and that their know-how could be adapted to other work, but held that they were hired because Facebook wanted to seed its London FAIR and SAIL operations with high-level AI expertise, not to continue Bloomsbury's business. The later work described in the contemporaneous documents was on Facebook's own integrity and related projects, and the tribunal held that this was not the same or a sufficiently similar economic undertaking.

On that basis, the tribunal held that there was no transfer of an undertaking within regulation 3(1)(a) TUPE 2006 when the claimant started employment with the respondent. The claimant therefore did not have the two years' continuous service required for an ordinary unfair dismissal claim, and that claim was struck out. The judgment also records that a separate preliminary issue as to whether the claimant was disabled under the Equality Act 2010 had been adjourned to a later date, so that issue was not determined in this decision.