In the recent Employment Tribunal case of Holden v Spice Valley Restaurants Ltd and others the employer, a restaurant, went into administration. It subsequently reopened the restaurant at a different location but failed to transfer the Claimant, a cleaner with 12 years’ service, to the new restaurant. The Claimant was also locked out of the previous restaurant, leaving her without work. The facts of the case paint a poor picture of the employer’s conduct in stringing the Claimant along.
The parties accepted that TUPE applied. The employer had made no attempt to fulfil its duties to inform and consult, providing evidence only that it had asked the Claimant to sign a document regarding a change in employer, which the Tribunal did not believe occurred in any event! Unsurprisingly the claimant was awarded the maximum award available - 13 weeks’ gross pay.
It’s important to remember that Tribunals do have discretion to reduce this award if it’s just and equitable to do so, therefore, an employer who tries to fulfil their duties but commits a technical breach (such as minor errors in the election process) should face a lower award. Parties should also bear in mind that these awards are joint and severable, so both the transferor and transferee are liable even if one party did nothing wrong.
Clarkslegal are running a series of podcasts on TUPE so watch out for these.