Claimant v Kaefer Ltd and others — 2023

This was a preliminary hearing before Employment Judge Heap sitting alone in Nottingham on 19 and 20 September 2023. The tribunal dealt with applications by the Second, Third and Fourth Respondents to strike out the claims against them. It applied Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and concluded that the claims against those respondents had no reasonable prospect of success, so they were struck out and removed as respondents.

The tribunal found that the Second Respondent had been approached about taking over the asbestos removal contract previously held by the First Respondent, but the anticipated contract never materialised. It accepted that there was no evidence that the Second Respondent ever undertook the relevant activities for the Third Respondent, and held that it could not therefore fall within Regulation 3(b)(ii) TUPE as a subsequent contractor.

As to the Third Respondent, the tribunal accepted that it never undertook in-house the activities previously performed by the First Respondent. It rejected the suggestion that the claimants were doing ancillary work beyond asbestos removal in a way that altered the pleaded case, and held that the Third Respondent could not fall within Regulation 3(b)(iii) TUPE. As to the Fourth Respondent, the tribunal found that it had been approached for asbestos surveys and emergency asbestos removal pending appointment of a new contractor, but that this was distinct from the work previously carried out by the First Respondent and was not the same activity.

The tribunal also rejected submissions that the Second, Third and Fourth Respondents should remain parties because of possible transfer or joint and several liability issues. It did not consider deposit orders after deciding to strike out the claims. The judgment did not determine the merits of the underlying claims against the First Respondent.