ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4108981/2021 Hearing by Cloud Video Platform (CVP) on January 2022 Employment Judge: M A Macleod Tribunal Member: M Watt Tribunal Member: A Ward Ross Glanville v Mariusz Batog trading as Batog Cleaning Service — 2022

The claimant, Ross Glanville, was employed by Accelerate Cleaning Solutions Limited and carried out the cleaning of the common parts at 76 George Street in Edinburgh. The tribunal found that on 9 November 2020 the respondent, Mariusz Batog trading as Batog Cleaning Service, attended the building in connection with the cleaning contract, and that ACS then informed the claimant that the 76 George Street cleaning role remained current but would end on 31 January 2021 and was, in its view, within TUPE.

The tribunal accepted the claimant's evidence and found Mr Batog's evidence more difficult to accept. It concluded that the cleaning service previously performed by ACS ceased and was taken over by the respondent with effect from 31 January 2021, amounting to a service provision change under TUPE regulation 3(b)(ii). It also found that the claimant was assigned to an organised grouping of employees whose principal purpose was carrying out the relevant activities, so his contract should have transferred to the respondent under regulation 4.

On that basis, the tribunal held that the respondent's actions effectively dismissed the claimant when his employment was not recognised after the transfer date. Applying TUPE regulation 7, it found that the sole reason for the dismissal was the transfer, so the dismissal was unfair. The claim succeeded.

In remedy, the tribunal awarded a basic award of £178.20, calculated by reference to two completed years' service and weekly pay of £89.10. It found that the claimant had made reasonable efforts to mitigate loss and awarded £2,762.10 for loss of earnings for 31 weeks from 31 January 2021 to 6 September 2021, together with £250 for loss of employment rights and £445.50 for 25 days' outstanding holiday. The total award was £3,457.60.