Mrs N Ross v Nikki Marks Limited — 2025

This was a preliminary hearing to determine whether the claimant TUPE transferred to the respondent on or around 22 September 2023, when all the shares in Nikki Marks Ltd were sold to Your Skin Coach Limited (controlled by Miss Cara Jeffrey). The claimant, who founded the company in 2008 and had been a shareholder and director, signed an employment contract with the respondent on the day of the share sale and was dismissed for redundancy on 3 January 2024. The tribunal had to decide her employment status before the sale, because the unfair dismissal and redundancy pay claims required at least two years of continuous service.

Employment Judge Dick concluded that before 22 September 2023 the claimant was not an employee of the respondent within the meaning of the Employment Rights Act 1996 or TUPE 2006/246. The judge held that the pre-sale arrangement was a contract for services rather than a contract of service, noting features consistent with a person running a business on her own account, including her shareholding, directorship, and the manner in which she drew remuneration. Accordingly there was no relevant transfer for the purposes of this claim, and even if the wider TUPE definition applied, the respondent (NML) was the claimant's employer both before and after the sale, so no transfer to the respondent could have occurred.

On that basis, the unfair dismissal and redundancy pay complaints were dismissed for want of the qualifying period of continuous employment, and the wrongful dismissal complaint was dismissed because the claimant had been paid the statutory notice to which she was entitled. The judge expressly declined to comment on the wider merits of how the claimant had been treated, observing that those issues were not before him.