There’s an assumption with TUPE claims that they should always be made against both the old and new employer, as one of them is bound to be liable. However this isn’t always the case and could lead to costly consequences.
In GMB & Others v HC-One Ltd and ADL Liverpool Ltd, the GMB brought a claim for failure to inform and consult on behalf of 65 employees against both the transferor (i.e. the previous employer, HC-One) and the transferee (i.e. the new employer, ADL). The claim was based on HC-One’s failure to inform affected employees of the measures envisaged by ADL. However, under TUPE this type of claim can only be brought against the transferor. The transferor can request the transferee be added in certain circumstances but the claimant cannot directly claim against the transferee.
During a preliminary hearing to discuss case management, the claimant was put on notice of a potential costs application from the transferee’s representatives as a result of incorrectly joining the transferee to the claim. However, this issue was reserved to be dealt with at the full hearing in May.
This case highlights the importance of ensuring claims are pursued against the correct respondent(s) and the potential risk of costs in the event that this is wrongly determined.