Mr Martin Palmer, of counsel For the first v Respondent — 2023

The lead claims were brought by Ms Apter and Mr Monk on behalf of a larger group of claimants whose employment with DDD Limited ended when the company went into administration on 28 February 2020. The second respondent later acquired substantially all of the business and assets on 5 March 2020. The central question for this hearing was whether the dismissals were automatically unfair because the sole or principal reason was the TUPE transfer, or whether they were dismissal for redundancy in the context of the administration.

The tribunal heard oral evidence from Ms Regan, Mr Wilkinson and Mrs Cox for the second respondent and accepted their evidence. It also accepted Ms Apter's evidence about the 28 February meeting at which the administrators announced immediate redundancies. The tribunal noted that no evidence was called from Mr Denny, who made the dismissal decision, or from Mr McGowan, but it did not draw an inference of collusion. It treated the administrator's decision as the relevant decision to examine and found that the first respondent's financial position meant that, from 1 March 2020 onwards, there was only enough funding to retain some employees, not all of them.

Applying the TUPE authorities it had reviewed, including the need to focus on the thought process of the decision-maker and the distinction between a transfer reason and an economic, technical or organisational reason, the tribunal held that the dismissals were not in the circumstances stated in regulation 7(1) TUPE. It found that the real reason, or at least the principal reason, for the dismissals was the urgent need to reduce costs by making redundancies, which fell within regulation 7(2) and regulation 7(3) TUPE. It therefore found that the TUPE transfer took place on 5 March 2020, but that the claimants were not dismissed because of that transfer.

Because the dismissals were found to be redundancy dismissals rather than transfer-related dismissals, the tribunal concluded that the second respondent was not liable to meet the claimants' claims and dismissed those claims against the second respondent. It did not go on to determine the remaining issues listed at the hearing, including the consultation and protective award issues, once it had reached that conclusion on liability.