E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4109113/2021 (V)5 Held on October 2021 Employment Judge N M Hosie Mr I Mackenzie v Angard Staffing Solutions Ltd — 2021

This was a preliminary hearing on the respondent’s application to strike out a claim for unpaid wages and holiday pay brought on the basis that there had been a relevant transfer from Royal Mail to Angard Staffing Solutions under TUPE 2006. The tribunal heard no oral evidence because the relevant facts were either agreed or not disputed, and it considered documentary material and the parties’ submissions. The claimant also applied to amend the claim to add Royal Mail as a respondent, relying on an alleged failure to consult.

The tribunal accepted that the claimant had been doing sorting work and considered the service provision change provisions in regulation 3(1)(b) and 3(3) of TUPE 2006. Applying the authorities it cited, including Metropolitan Resources, Kimberley Group Housing, Edie Stobart, Ceva Freight and the BIS Guide, it found that there was no organised grouping of employees with the principal purpose of carrying out the activities concerned. The tribunal said there was a group of Christmas casual workers, but not an organised grouping, and therefore no relevant transfer to the respondent.

Because there was no TUPE transfer, the tribunal held that the claimant’s claim had no reasonable prospect of success and struck it out under Rule 37(1)(a). It also refused the application to amend. The tribunal said that, even if Royal Mail had been added, there would have been no obligation to consult because TUPE did not apply; in any event, the amendment was refused under the Selkent approach because of the delay in making it, the resulting prejudice, and the overriding objective.