Thread by @JasonBraier

1/Clark v Middleton & Black Dog Hydrotherapy Ltd: EAT holds it's possible to settle a transferee's TUPE Reg 15(8)(b) consultation liability, & a failure to inform on the t'ee's identity isn't a technicality for which £0 compensation is justified. bailii.org/uk/cases/UKEAT… #ukemplaw

2/ C worked for Black Dog Hydrotherapy ('BDH'), which M ran as a sole trader. There were 5 employees. In Sept 2019, BDH were transferred to a ltd co, Black Dog Hydrotherapy Ltd ('BDHL'), incorporated by one of BDH's employees, JSA. C's employment transferred but she soon resigned

3/ C brought claims against M as TUPE transferor in re failure to consult & against BDHL in re wages, holiday pay & unfair dismissal claims. M asserted she complied with reg 13 duties & that any failure resulted from BDHL's failure to provide requisite information to her.

4/ C then entered into settlement through ACAS with BDHL, leaving only the claims against M and the claims against BDHL were dismissed upon withdrawal. The claim thus proceeded solely against M.

5/ The ET found that M had decided to retire & there had been an expectation of JSA taking over, something of which C was aware & had discussed with JSA, including by suggesting JSA set up a ltd co for the purpose.

6/ The final & necessary details of the transfer were not set out in writing to the staff, though C herself organised M's retirement party & informed clients of the change of ownership & worked on refurbishing the premises prior to the transfer.

7/ On transfer, the new contracts removed various contractual rights, including to 2 weeks' sick pay & paid breaks. They also varied the hours of employment. It was after all of this that the relationship between C and JSA broke down.

8/ The ET found that M failed to communicate to C & others the fact that the transfer was to be to a limited company. As regards contractual/personnel changes, the ET found JSA envisaged changes but kept them from M, & that M's Reg 15(2) defence succeeded.

9/ The ET thus found the only breach made out against M to be the failure to provide the information about the transferee's identity, which the ET described as a 'very technical breach' in respect of which the ET decide to award zero compensation.

10/ The ET said that had the claim against BDHL not been dismissed, there may have been a Reg 15(8)(b) award against it re M's failure to consult, but it considered the dismissal of that claim meant it was outside the interests of justice to make an award against a released party

11/ On appeal, the EAT found the ET wrong to find C erred in solely bringing the Reg 13 claim against M rather than BDHL. The claim was to be brought against the party who was the employer at the point of breach of compliance, & with the duty to consult that was the t'or.

12/ The next question was whether the ET then erred in finding the settlement & dismissal on withdrawal of C's other claims against BDHL meant that an order under reg 15(8)(b) for it to pay the compensation couldn't be made.

13/ The EAT found it possible to reach settlement in re a Reg 15(8)(b) order. The question then was whether the settlement had in fact compromised any such claim. The EAT found it was for reasons set out in the next tweet.

14/ C had asked the ET to dismiss "all claims" against BDHL, conveying the intention to end their entire involvement. No complaint was identified as maintained. Whilst BDHL was a party to the unfair dismissal etc claims, M's response would make it a party to the Reg 13 claim too.

15/ Even if wrong on that, the EAT accepted the legitimacy of the ET's counterfactual position in para 54 of the ET judgment that it could note that BDHL wasn't represented at the hearing & didn't anticipate that it would have further exposure to liability to C after settlement.

16/ On the ET's decision to award no compensation, the EAT disagreed that it was a mere technical breach. Knowing the identity of the new employer is of fundamental importance & failing to inform on this wasn't a mere technicality.

17/ Given its fundamental importance, the ET was wrong to award zero compensation to C for this breach. The amount to be awarded was accordingly remitted, with the EAT deciding to remit it to a differently constituted tribunal.