Mr J Benjamin v Mr I D Jackson and 1 other — 2023

The tribunal found that there had been a transfer of an economic entity which retained its identity from Mr Jackson to Embrace Education Limited under TUPE. It identified the relevant business as the work done for the Police Community Clubs of Great Britain, including the Barney & Echo books and related contract rights, and relied in particular on the contemporaneous agreement of 30 October 2020, the asset purchase agreement, and the continuity of the arrangements with the Police Community Clubs of Great Britain. It also found that the claimant, whose work had been primarily assigned to the Barney & Echo work before furlough, was assigned to that undertaking and therefore transferred with it.

The tribunal held that the claimant was unfairly dismissed. It found that the dismissal was for redundancy and that the circumstances amounted to an economic, technical or organisational reason entailing changes in the workforce, so the dismissal was not automatically unfair under TUPE. However, applying section 98(4) ERA 1996 and the redundancy fairness authorities it cited, the tribunal found the dismissal unfair because the claimant was dismissed by text message, without warning, consultation, selection criteria or any consideration of alternatives. The tribunal held that the second respondent became liable for the unfair dismissal by operation of TUPE, even though the failings in the process were those of the first respondent.

The age discrimination claim was dismissed. The claimant was 62, and the tribunal accepted that the second respondent treated him less favourably than Mrs Mills and Ms Vaughan in the sense that they were engaged or offered work and he was not. It nevertheless found no sufficient evidence that age was the reason for that treatment, and no prima facie case strong enough to shift the burden of proof. It also found that the first respondent treated all employees alike by dismissing them, so there was no less favourable treatment by him. Remedy was not determined at this stage; the judgment records that a separate remedy hearing was listed for 5 February 2024.