Mr. C. Davey, counsel For the v Mr S Hoyle, Consultant (Croner) — 2018

The claimant, Mr Sadhukha, had been employed by Kentucky Fried Chicken (Great Britain) Ltd since 1995 and was a restaurant manager by the time the Tottenham Hale restaurant was proposed to transfer to MFIT Foods Ltd under TUPE. In the consultation process he objected to the transfer because he considered that his remuneration package would be reduced, referring in particular to the loss of Yumbucks share rights, Pick n Mix benefits, the discount card and the bonus arrangements.

The tribunal found, on the paragraph 9 TUPE issue, that the Yumbucks share scheme had become an implied term of the claimant's contract by custom and practice, applying the Albion Automotive factors. It found that the scheme was withdrawn on the transfer, that the loss was worth about $3,500 to $3,700 a year to the claimant, and that this was a substantial change in working conditions to his material detriment. On that basis the claimant was treated as dismissed by the respondent under regulation 4(9).

The tribunal also found that the Pick n Mix benefits and the discount card would be lost on transfer and that those losses were further material detriments. It found that the respondent had not advanced any economic, technical or organisational reason for the dismissal, and that the dismissal was solely because of the transfer. It therefore held that the dismissal was unfair. The tribunal noted that a remedies hearing would be listed separately.

In the alternative, the tribunal held that the Yumbucks entitlement was also incorporated into the contract by custom and practice, but it rejected an implied contractual entitlement to the bonus scheme because the 2017 and 2018 bonus documents stated that bonus plans were non-contractual. It also rejected an implied contractual entitlement to the discount card because that was part of the non-contractual flexible benefits. Even on that alternative analysis, the removal of Yumbucks was a fundamental breach and the claimant resigned in response to it, so he would have been constructively dismissed. The tribunal rejected the respondent's Polkey argument because no evidence or submissions were put forward on the chance of a fair dismissal in any event.