EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4100969/2020 (V)5 Held by means of the Cloud Video Platform on 12, and July 2021 Employment Judge W A Meiklejohn Tribunal Member Ms J Anderson Tribunal Member Ms M McAllister Miss L Milroy v Represented by:15 Ms S Mechan – Solicitor Cowden Holdings Ltd and 1 other — 2021

The claimant had worked at the Crown Bar and was returning from maternity leave after the business transferred from Damall Ltd to Cowden Holdings Ltd on 10 October 2019. The tribunal preferred her evidence about the events of 18 November 2019 and found that, when she attended the bar to clarify her return to work, she was told via Ms Rodgers that Mr Cowden said he had never employed her. It held that she was dismissed by the first respondent on that date.

On reason, the tribunal found that the dismissal was caused by the TUPE transfer itself. It rejected the argument that there was an economic, technical or organisational reason entailing changes in the workforce, and therefore held the dismissal to be automatically unfair under Regulation 7 of TUPE. It found some contributory conduct because the claimant had not contacted Mr Cowden before her return date, reduced both the basic award and compensatory award by 10%, and made no Polkey reduction.

The tribunal found that there had been a failure to inform or consult under TUPE, but dismissed that complaint as out of time because it was reasonably practicable to present it within the three-month limit running from 10 October 2019. It also dismissed the section 18 Equality Act 2010 pregnancy and maternity discrimination complaint: although the claimant suffered unfavourable treatment when she was not allowed back to work, the tribunal found that this was because the first respondent would not accept former Damall staff, not because she was exercising maternity leave. Separately, because no statement of initial employment particulars had been provided, the tribunal made a section 38 Employment Act 2002 award of £500, equal to four weeks' pay.