Mr E Okodugha v Represented by: Ms L Campbell,15 Solicitor Next Level Security Services Ltd and 1 other — 2023

At the preliminary hearing on 19 April 2023, Employment Judge A Kemp considered the second respondent's application to strike out. The case was pleaded as constructive unfair dismissal under sections 95(1)(c) and 98 of the Employment Rights Act 1996 and as a breach of the TUPE Regulations arising from the transfer from the second respondent to the first respondent on 1 April 2022. The claimant said he had previously worked around full-time hours, that he was not offered comparable hours after transfer, and that he resigned on 12 August 2022.

On the TUPE point, the tribunal held that the claim form's reference to a breach of the regulations, read with the further and better particulars, was sufficiently connected to the pleaded information and consultation complaints to justify receiving the particulars, or alternatively allowing them as an amendment. It treated the pleaded complaint as one under Regulation 15, potentially engaging duties under Regulations 13 and 14, and noted that the issue whether employee representatives had been elected remained unresolved.

The tribunal refused to strike out the Regulation 15 claim because it could not say that the claim had no reasonable prospects of success and because material factual issues remained, including what information was given, what consultation took place, and whether the claim was time-barred under Regulation 15(12). It observed that early conciliation appeared to have begun after the primary three-month period, but reserved the jurisdiction and time-limit issue for the final hearing. It also noted that any remedy for a breach of the regulations would be discretionary and could involve up to 13 weeks' pay, but no remedy was awarded at this stage. The judgment also stated that constructive unfair dismissal is a separate claim against the employer and that employee liability information is not a direct employee claim.