Mrs L Walsh v Fleet Commercials Limited and 1 other — 2019

This was an open preliminary hearing before Employment Judge Shotter sitting alone in Liverpool on 14 February 2020. The tribunal had to decide whether there had been a TUPE transfer between the second respondent, Loumogg Ltd, and the first respondent, Fleet Commercials Ltd, and, if so, the date of transfer and whether the claimant was employed by the transferor immediately beforehand.

The tribunal heard evidence from the claimant, Carl Haslam and Ian France. It preferred the evidence of the claimant and Mr Haslam, found Ian France to be inaccurate on key matters, and gave little weight to the unsigned statement of Kim Finney because she was not called for cross-examination. It found that on 5 April 2019 the claimant and Mr Haslam were told that Ian France would be the new boss, that from 8 April 2019 Ian France was running the business, and that the business continued in the same premises, with the same Asda contract and continuing staff, without interruption.

Applying the TUPE authorities cited in the judgment, including Spijkers, the Cheesman principles, Celtec v Astley and Housing Maintenance Solutions v McAteer, the tribunal held that there was a transfer of an economic entity which retained its identity and that responsibility as employer moved to Fleet Commercials Ltd on 8 April 2019. It also found that the claimant was employed by Loumogg Ltd immediately before that transfer. The remaining claims were not determined at this hearing and were listed for a final hearing before an Employment Judge sitting alone.