Miss K Kolodziejczyk v Abakus 2 Ltd and 2 others — 2021

The claimant had worked for the first respondent since 6 April 2008. The tribunal accepted that, after the opening of the Tecza shop and the 1 March 2013 contract requiring work at different locations, she worked approximately 70% of her time at Abakus and 30% at Tecza between 2014 and January 2017. Applying the Spijkers/Cheesman approach to the transfer issue, and considering the assignment authorities including Botzen, Buchanan-Smith, Duncan Web Offset and Fairhurst Ward Abbotts, the tribunal found that the Abakus shop was an economic entity that retained its identity, but that the claimant was not assigned to that part of the business.

On that basis, the claimant's employment did not transfer under TUPE to the second or third respondent. The tribunal dismissed the claims against the second and third respondents. It also dismissed the reg. 15 TUPE protective-award/inform-and-consult claim, holding both that there was no relevant transfer for that claim to attach to and that it was not brought within the required time. The tribunal accepted that the claimant first learned of the alleged transfer on 17 June 2020, but she did not present the claim until 22 September 2020.

The tribunal held that the unfair dismissal claim against the first respondent was in time because the dismissal date was 17 June 2020. It rejected the submission that the claimant was dismissed when she received the February 2020 holiday-pay payment, and it treated the P45 dates as not establishing termination. The unlawful deduction from wages claim and the accrued but untaken annual leave claim were also held to be within time, but the tribunal did not decide the merits or any final monetary entitlement at this preliminary hearing.