ABM Facility Services UK Limited v Proway Window Cleaning Company Limited — 2020

The claim concerned a relevant transfer from Proway to ABM on 1 October 2019. The parties accepted that the transfer was within TUPE and that Mr A Perrin, Mr N Turnham, Mr A Bates and Mr B Cass were assigned to the organised grouping. The issue under Regulation 12 was whether Proway had given ABM complete employee liability information, including the pay particulars required by section 1 ERA 1996, by 3 September 2019.

For Mr Bates and Mr Cass, Proway gave hourly rates and signed terms, but the tribunal found it did not provide adequate information about bonuses. The payslips referred to extra payments as 'price work', and the tribunal held that this did not explain that they were bonuses or identify who would receive them. Relying on Born London Ltd v Spire Production Services Ltd, the tribunal held that non-contractual bonuses fell within the required pay particulars and that Proway was in breach in relation to both men.

For Mr Turnham and Mr Perrin, the tribunal accepted that the explanation of 'price work' and the examples of recent jobs probably satisfied the requirement to explain the method of calculation, and that the later P60s were not enough to show the expected rate or how pay was set. The material omission was that Proway did not tell ABM that the supervisors' pay was always made up to £40,000 per year. It also found that information about holiday pay at £14 per hour was supplied overnight on 10/11 September, about a week late.

On compensation, the tribunal found that ABM had already decided not to pay price work and that the claimed losses were driven by the transfer negotiations rather than by the information failures alone, so no full statutory minimum award was made. It awarded £240 each for Mr Bates and Mr Cass and £300 each for Mr Turnham and Mr Perrin, making a total award of £1,080. It held that ABM had not failed to mitigate by speaking to the employees and asking Proway for further information.