Case 2416830/2019 · Employment Tribunal
Mrs J Martynuik & Others (See attached Schedule) v Lunar Caravans Limited and 1 other — 2021
- Case reference
- 2416830/2019
- Decision date
- 14 October 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Dunlop
- Venue
- Manchester
Parties
3 namedClaimant
Mrs J Martynuik & Others (See attached Schedule)
Key findings
Tribunal's reasoningThe tribunal found that there was a relevant TUPE transfer of the first respondent's business to the second respondent on 14 August 2019. It rejected the second respondent's arguments that Regulation 8(7) TUPE applied, finding that the administration did not bring the case within that provision and that it was not satisfied a winding-up petition had been presented or that any winding-up proceedings were under the supervision of an insolvency practitioner.
The tribunal rejected the claimants' primary case that the 26 July 2019 dismissals were automatically unfair because the sole or principal reason was the transfer. It found that the immediate reason for the redundancies was the first respondent's financial position and inability to continue paying the workforce, although discussions about headcount had occurred. Liability for the dismissals therefore did not pass to the second respondent. The dismissals were nonetheless unfair as against the first respondent because of the lack of warning, meaningful consultation, individual consultation, and transparency in selection. The claimants were also wrongfully dismissed because they were dismissed without notice.
On the TUPE information and consultation claim, the tribunal held that the transferring employees were affected employees and that Unite could pursue the claim on their behalf. It found a wholesale failure by the first respondent to provide the information required by Regulation 13(2) TUPE, but no separate consultation obligation arose on the pleaded case. The appropriate award was five weeks' pay per affected employee, with joint and several liability on both respondents.
On the collective redundancy consultation claim, the tribunal found that the first respondent proposed to dismiss 20 or more employees within 90 days and did not comply with s.188 TULRCA. Unite was entitled to a protective award against the first respondent only. Taking account of the financial circumstances and some belated engagement with Unite, the tribunal indicated a protected period of 70 days rather than the 90-day maximum.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Transfer of undertakings (TUPE) | The tribunal found a relevant transfer on 14 August 2019 and upheld Unite's Regulation 15(1) complaint that the first respondent failed to provide information required by Regulation 13(2) TUPE. It found no separate failure to consult on the facts. The award was to be five weeks' pay per affected transferring employee, with the schedule and final order to be determined later; the first and second respondents were jointly and severally liable for that award. | Upheld | — | — |
| Unfair dismissal | The claim that the dismissals were automatically unfair under Regulation 7(1) TUPE, and therefore transferred to the second respondent, failed. The tribunal nevertheless held that the individual claimants were unfairly dismissed by the first respondent under s.94 ERA 1996; compensation was left to be assessed later. | Upheld | — | — |
| Wrongful dismissal | The tribunal held that the individual claimants were dismissed without notice by the first respondent. Compensation was to be calculated later. | Upheld | — | — |
| Trade union | Unite's claim for a protective award under s.189 TULRCA, based on failure to comply with s.188 collective consultation obligations, was upheld against the first respondent only. The tribunal indicated a protected period of 70 days, with the final award to be made later after receipt of a schedule of employees. | Upheld | — | — |
Legal tests applied
18 references- Regulation 3(1)(a) TUPE 2006
- Regulation 8(7) TUPE 2006
- Regulation 7(1) TUPE 2006
- Regulation 7(3) TUPE 2006
- s.98(4) ERA 1996
- Regulation 13(2) TUPE 2006
- Regulation 13(9) TUPE 2006
- Regulation 15(1) TUPE 2006
- Regulation 15(8)(a) TUPE 2006
- Regulation 15(9) TUPE 2006
- s.188 TULRCA 1992
- s.189 TULRCA 1992
- OTG Limited v Barke
- Key2Law (Surrey) LLP v De'antiuis
- Marshall v Game Retail Ltd
- Hare Wines v Kaur
- Spaceright Europe Ltd v Baillavoine
- UCATT v Amicus
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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