Mrs Eileen Morton v Independent Catering Management Limited and 1 other — 2023

This judgment concerned the claimant’s TUPE complaint that the respondents failed to inform and consult her under regulation 13 of the TUPE Regulations. An unrelated claim against the second respondent concerning a material change to working conditions had been withdrawn on 2 November 2022 and was not determined. The tribunal found that Mrs Morton was an affected employee because she worked solely on the catering contract that transferred from Independent Catering Management Ltd to Cambridge Tutors College London.

The tribunal found that the first respondent did not take any steps to inform or consult the claimant before the transfer date, and did not invite her to elect employee representatives. The first respondent argued that it was waiting for the second respondent to confirm its intentions and did not want to worry the claimant, but the tribunal held that this was not a special circumstance making compliance not reasonably practicable. It found that the employer had a six-week period in which it could have taken steps to comply, and that even if full compliance was not possible it had not taken all reasonably practicable steps.

On liability, the tribunal held that the first respondent was in breach of regulation 13(2), including paragraphs (a) to (c), because it knew the fact and proposed date of the transfer, the reasons for it, and the measures it envisaged if there were no transfer. The tribunal also held that any reliance on regulation 13(2)(d) could not assist the first respondent because no representative election process had been started and the first respondent had not informed the claimant that a transfer was possible. The second respondent was jointly and severally liable under regulation 15(9).

For remedy, the tribunal treated the failure as a complete failure to inform and consult and started from the maximum of 13 weeks’ pay under the statutory scheme and the Susie Radin approach. It reduced that to 10 weeks’ pay to reflect mitigating factors, including the first respondent’s stated intention not to worry the claimant during the holiday period and the second respondent’s summer holiday constraints, but also noted the lack of urgency and the claimant’s shock at learning of the transfer on the day it took effect. The award was calculated at 10 weeks’ pay of £206.77 gross, producing a total award of £2,067.70 gross.