Ms A Plaza v 1 Trevor-Roberts School 2 Intercontinental Facility Services Ltd — 2019

The claimant was a cleaner employed by Trevor-Roberts School, and the school decided in early 2019 to contract out the cleaning work to Intercontinental Facility Services Ltd. The tribunal found that the transfer was to take place on 1 June 2019 and that the claimant was given the key transfer information several times, both orally and in writing, including by Ms Trevor-Roberts, at the 7 May meeting with R2, in Ms Burton's letters and emails, and again on 21 and 30 May 2019. Because there were only two affected employees and no representatives, the tribunal held that special circumstances under regulation 13(9) TUPE 2006 made it reasonable for R1 to provide the information directly to the employees rather than through elected representatives.

On the unfair dismissal issue, the tribunal found that by 21 May 2019 the claimant had made clear that she did not want to transfer to R2 and had refused to provide the verification documents that R2 required. It found that the transfer only involved the same pay, hours and holiday entitlement, with another cleaner working in the same building and more support and training, and that these changes were not substantial and were not to her material detriment. Regulation 4(9) TUPE 2006 therefore did not apply. Because the claimant objected before the transfer date, the transfer operated to terminate her employment under regulations 4(7) and 4(8), but she was not dismissed, so the unfair dismissal claim and the notice pay claim both failed.

The tribunal rejected the race discrimination complaint. It found that the alleged acts by Ms Trevor-Roberts and Ms Burton were not made out, and that the only raised-voice incident was a response to the claimant's refusal to engage with the transfer, not something done because of her Polish origin. It held that providing transfer information in English could disadvantage Polish-origin workers who did not speak English, but it did not disadvantage this claimant because she spoke and understood English and could have had the documents translated. The sex discrimination complaint also failed: the tribunal found that R2's rule that cleaners could not bring children to work did not put women at a particular disadvantage and did not put the claimant at that disadvantage, and in any event it was a proportionate means of achieving the legitimate aim of protecting children's health and safety.

The holiday pay claim succeeded. The tribunal found that the claimant's holiday year ran from 1 September, that by 31 May 2019 she had accrued 21 days' leave and taken 16 days, and that she was entitled to payment for 5 untaken days. The judgment awarded her £385.57 gross.