Brady v Represented by R Lawson Solicitor Pegasus Couriers Scotland Ltd and 1 other — 2021

The hearing on 8 March 2021 concerned the claimant's application to strike out Ground B of the respondent's ET3 in proceedings for unfair dismissal and wrongful dismissal. The respondent had pleaded that because the claimant had accepted a redundancy payment from previous employment in May 2019, the Transfer of Undertakings (Protection of Employment) Regulations 2006 did not apply. The claimant withdrew the separate time bar ground and the tribunal heard legal argument only; no evidence was led.

The tribunal accepted the submission that receipt of a redundancy payment did not of itself determine whether TUPE applied or whether the claimant had the continuity needed to pursue an unfair dismissal claim. It noted that there are insolvency scenarios under regulation 8 of TUPE in which the automatic transfer principle can still operate, and that section 214 of the Employment Rights Act 1996 only affects continuity for redundancy-payment purposes. On that basis Ground B was struck out under Rule 37 as having no reasonable prospects of success. The tribunal also recorded that, had the matter ended there, the effect would have been as though no response had been submitted under Rule 21, but the respondent was granted leave to amend the ET3.