EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4110623/2021 & Others and 4110622/2021 & Others Hearing at Edinburgh on 1, and August 2022; November 2022; and and January 2023; Members’ Meetings on January and March 2023 Employment Judge: M A Macleod Tribunal Member: A Grant Tribunal Member: L Grime Ms L Smith Lead v Represented by Mr M Haywood Barrister Instructed by Mr P Kissen Solicitor Ms Leah Newman Rollandene Limited Mansfield Care Limited st and 1 other — 2023

This was a liability judgment in a multi-claim case concerning Adamwood Nursing Home. The tribunal held that there was a relevant transfer of the affected staff from Rollandene Limited to Mansfield Care Limited within regulation 3 of TUPE 2006, with the transfer taking place on 29 June 2021 when the last resident left Adamwood. It found that the March 2021 Heads of Terms did not govern the June arrangements, but that the June transfer amounted to a transfer of an undertaking for the privately funded residents and a service provision change for the socially funded residents.

On employee status, the tribunal accepted that Laura Smith, although described as bank staff, was in fact an employee of the first respondent at the date of transfer. Applying Ready Mixed Concrete and Cotswold Developments, it relied on her long service of about 20 years, regular rota-based night shifts, PAYE tax and national insurance deductions, pension deductions, and the degree of control exercised by Mrs Wood. It also held that Leah Newman was an employee and that both Ms Smith and Ms Newman should have transferred to the second respondent.

The tribunal also found a failure to consult with staff in breach of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. It held that the first respondent had more than 20 employees once Ms Smith was treated as an employee, that there was no recognised trade union or elected representative process, and that the staff were left to work out what was happening as Adamwood closed. The tribunal deferred remedy, including the scope and apportionment of any protective awards and any individual consequences of the transfer findings, to a later hearing.