Mr Barnett v AJSHM Limited and 2 others — 2022

Mr Barnett worked as a mechanic at the Little End Road garage and the documents before the tribunal showed that he started with SA Service Centre Limited and then transferred to AJSHM Limited on 18 January 2019. He was dismissed on 23 January 2020. This reserved judgment did not determine the merits of the underlying unfair dismissal, redundancy pay, notice pay or holiday pay claims; it decided only preliminary issues about the correct employer and whether there had been a TUPE transfer to the third respondent.

Applying s.230(1), Ready Mixed Concrete, and the irreducible minimum of employment, the tribunal found that the evidence pointed to the first respondent as the claimant's employer. Steve McCallion, acting for the first respondent, directed the claimant's work; the claimant was paid through SA Service Centre and AJSHM and was never paid directly by the second respondent; and the claimant carried out car-mechanic work at the garage in unit 27. The shared office, shared receptionist, and the claimant's need to enter the second respondent's premises to pass paperwork or use a computer were not enough to show employment by the second respondent. The tribunal accepted that the suspension letter used the second respondent's letterhead because of a one-off mistake on a shared laptop, and it found that the dismissal letter was properly issued on the first respondent's letterhead.

The tribunal rejected the argument that the corporate veil should be lifted, referring to Prest v Petrodel Resources, and it dismissed the claimant's contention that the second respondent was his employer. It also held that there was no evidence of mutuality of obligation between the claimant and the second respondent and no basis for saying that the first respondent was a subsidiary and dependent enterprise in the sense advanced by the claimant.

On the TUPE issue, the tribunal applied reg 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and found no evidence of any transfer from the first or second respondent to the third respondent. It noted the absence of any contract between the relevant businesses, any due diligence, any transfer of assets, or any employment relationship with the third respondent. The tribunal therefore dismissed the allegation that the claimant had transferred to the third respondent, and it also rejected the parties' strike-out and default judgment correspondence, stating that there was no reason to strike out any party for unreasonable conduct or failure to comply with an order. A final hearing on the remaining claims was listed for 15 July 2022, and no remedy was awarded in this judgment.