Mr Kunil Tailor v Outstanding Branding Limited (in voluntary liquidation) and 1 other — 2023

The tribunal accepted the claimant's evidence that Mr Thorne referred to him, who is Asian, as a "terrorist" on a number of occasions before he went on furlough, and it found that the first respondent had not dismissed him before the TUPE transfer. It also found that the first respondent had failed to pay him for March to May 2021, while some other employees were paid during that period.

The tribunal found that the first respondent's promotional gifts and branding merchandise business transferred to Sandy Branding Limited on or around 31 May 2021 under TUPE. It held that there was a relevant economic entity, that the claimant was assigned to the organised grouping that transferred, and that his employment continued with the second respondent. On the facts found, his employment ended on 30 September 2021, when the parties understood his role to be redundant.

The claims of harassment and direct race discrimination against the second respondent failed for different reasons. The harassment allegations were treated as a course of conduct, but the claim was brought about 22 months late and the tribunal was not prepared to extend time on a just and equitable basis. The direct race discrimination claim failed because the claimant had shown different treatment but the tribunal held that the suggestion that this was because of race was only a bare assertion and that the burden of proof did not shift.

The tribunal held that the second respondent had a fair reason to dismiss the claimant, namely redundancy or, in any event, the economic impact of the pandemic and the reduced need for staff, but no dismissal process was followed. The dismissal was therefore procedurally unfair. Applying Polkey, the tribunal limited the compensatory award to six weeks' pay, together with lost pension contributions and loss of statutory rights, and set the basic award at nil because the statutory redundancy payment matched it.

On remedy, the first respondent was ordered to pay £4,504.50 gross for unpaid wages from March to May 2021. The second respondent was ordered to pay £5,544 gross for unpaid furlough wages from June to September 2021, £1,453.84 gross as a statutory redundancy payment, £2,596.16 gross for unfair dismissal, £1,453.84 gross for wrongful dismissal, and £331.56 gross for four days' accrued but untaken holiday. The TUPE complaints about electing representatives, providing information, and consultation all failed because the relevant pre-transfer obligations lay with the transferor and, on the facts found, no measures were envisaged.