Mr J Elliott v Atlas Fm and 1 other — 2026

The judgment determined the first respondent's application for expenses against the second respondent following a preliminary hearing on TUPE 2006 issues. The first respondent was the transferor and the second respondent was the transferee. The claimant was neutral on the expenses application and did not participate to save cost.

Employment Judge Whitcombe found that the second respondent had acted unreasonably in the conduct of the proceedings and that its position on the preliminary issue had no reasonable prospect of success. The unreasonable conduct included lack of timely engagement with preparation for the preliminary hearing, inclusion of duplicate documents and without-prejudice ACAS correspondence in the bundle despite objection, and an application to postpone the hearing which had no reasonable basis, although those matters were treated as lower-level seriousness.

The tribunal treated the more serious issue as the second respondent's pursuit of a position inconsistent with its own witnesses' evidence. The judgment records that the second respondent's witnesses accepted that the claimant's role fell within the transferred services, that the second respondent had been told the claimant was in the pool of transferring employees on the day of the transfer and had met him, and that the claimant should have been included in the consultation process and transferred. The tribunal found that the preliminary hearing should not have been necessary because the claimant's assignment to the organised grouping of employees transferred ought reasonably to have been conceded.

The tribunal exercised its discretion to make an expenses order. It found that instructing counsel for the preliminary hearing was reasonable and that the claimed brief fee of 2,000 plus 400 VAT was within the reasonable range. The second respondent was ordered to pay the first respondent's legal expenses summarily assessed at 2,400.