Mr S Edwards v Sport Taekwondo UK Limited t/a GB Taekwondo and 2 others — 2019

The claimant was a senior physiotherapist working for the second respondent, providing physiotherapy services to GB Taekwondo. The tribunal found that at midnight on 19 December 2016 there was a service provision change to the first respondent: the first respondent intended to take the medical/physio role in-house, the claimant was an organised grouping of one, and the activities were the same as those previously carried out by the second respondent. The tribunal said that if it was wrong about transfer to the first respondent, there was alternatively a transfer to the third respondent by a series of transactions, with the later arrangement becoming a permanent one rather than a short-term gap cover.

On the transfer issue, the tribunal relied on the in-house job advertising, the November 2016 interviews, the 21 November email referring to moving physio and doctor services to centrally employed staff, and the absence of any clear evidence that the in-house plan had been abandoned before the transfer date. It found the later disclosed board minutes supported the conclusion that there had been no concluded change of direction by 19 December. It also rejected the suggestion that the claimant worked for other athletes in a way that prevented him being treated as assigned to the GB Taekwondo service.

The tribunal found that the first respondent did not accept the claimant's transfer because it wanted a clean break from the second respondent's medical team after the whistleblowing review, and not because of the claimant's protected disclosures or his health and safety complaints. It accepted that the claimant's objection to the communications policy could amount to a protected disclosure, but held that the 21 November email was not protected because it was essentially about his own employment position. It also found that the athlete welfare concerns about Athletes A, B and C were not the reason for the respondent's stance.

The claimant therefore succeeded in his automatic unfair dismissal claim under regulation 7(1) TUPE, and the tribunal said he would also have succeeded under section 98(4) ERA 1996. His whistleblowing and health and safety claims failed. The tribunal rejected the ETO defence advanced by the first respondent. It also held that the regulation 13 TUPE information and consultation complaint succeeded against the first respondent, while the second respondent's failure to elect representatives was mitigated by the first respondent's failure to provide the necessary information.

The tribunal also held that the claimant succeeded on wrongful dismissal / notice pay and holiday pay, with liability on the first respondent because of the transfer finding. No monetary awards were fixed in the liability judgment. The tribunal directed that the case be listed for a remedy hearing, and any ACAS uplift issue was reserved to that hearing.