Mr K Barsoum v Greenzest Limited and 1 other — 2019

The tribunal held that the MCS cleaning work was a service provision change, but Mr Barsoum was not assigned to the organised grouping that transferred. Although he spent about 60% of his on-site time and about 60% of his administrative time on MCS matters, his written contract was not tied to that client, he was one of three operations managers covering multiple contracts, the staffing document did not list him as part of the contract team, and he had already been removed as the MCS point of contact before the transfer.

On that basis his employment did not transfer to Prestige Services London Limited, and all claims against the second respondent were dismissed. The tribunal found that Greenzest dismissed him on 15 or 18 December 2017. It rejected Greenzest's reliance on an economic, technical or organisational reason under TUPE Regulation 7, finding that the loss of MCS created only a short-term diminution in work, the company had recently appointed a new general manager during a period of growth, and there was no documentary evidence that the business needed to dismiss him because of the transfer.

The tribunal also held, in the alternative, that the dismissal was unfair under s.98 ERA 1996 because redundancy was not the real reason for dismissal. It found that Mr Fraser-Jones had lost confidence in the claimant and saw the transfer as an opportunity to replace him, at least temporarily, with Mr Van Biljon, but that did not amount to an ETO reason. The reasons record agreed sums of £986.58 for holiday pay, £2,200.50 as the basic award, and £1,644.23 for notice pay; the compensatory award was left for a later remedy hearing, with the tribunal noting that the maximum compensatory award it could make was £36,000 subject to mitigation.