Mr T McMaster v Oncall Group Resources Ltd: 1304746/2023
JUDGMENT
[1]There was no transfer of an undertaking or business (or part thereof) to the Respondent pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006;[2]The complaint of unfair dismissal is therefore dismissed because the Tribunal does not have jurisdiction to determine it. Approved by:REASONS
[1]The Claimant was employed by the Respondent as an engineer until 31 May 2023. By a claim form presented on 26 June 2023 (early conciliation having taken place between 9 and 21 June 2023), the Claimant brought a complaint of unfair dismissal (under section 98 of the Employment Rights Act 1996 (ERA).[2]Part of the Respondent’s defence was that the Claimant did not have sufficient continuous service to bring a claim for unfair dismissal because his employment with the Respondent commenced on 30 September 2022. The Claimant’s case was that his employment transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) to the Respondent and that his continuous employment therefore commenced on 1 January 2019 when he started working in the SDT Security business. Various assets of the SDT Security business were sold to the parent company of the Respondent, Oncall Group Security Limited (OGS), in September 2022 (Sale).[3]If there was no TUPE transfer the Claimant would not have sufficient continuous service for the Tribunal to have jurisdiction to hear his claim for unfair dismissal. Therefore, it was ordered on 17 January 2025 that a two day preliminary hearing be held to decide whether or not the Claimant’s employment transferred to the Respondent pursuant to the TUPE Regulations.THE HEARING
[4]The Claimant attended the hearing in person and represented himself. He was accompanied by his wife. The Respondent attended and was represented by Mr Singh. The Respondent had prepared a 169-page bundle of documents for the hearing, which was agreed between the parties (Bundle).[5]The Tribunal heard evidence from the Claimant and one witness from the Respondent: Mr Hosking, the Managing Director of the Respondent.[6]The Tribunal heard submissions from the Claimant and Mr Singh.THE ISSUES
[7]The issues to be determined were identified as follows:7.1 Was there a relevant transfer or transfers of the business or part of the business formerly known as SDT Security to the Respondent?(a) Was there an economic entity?(b) Did the economic entity transfer?(c) If so, did that economic entity retain its identity following the transfer(s)?7.2 If so did the Claimant’s employment transfer to the Respondent? (a) Was the Claimant employed by the Transferor? (b) Was the Claimant part of an organised grouping of resources or employees assigned to the subject of the relevant transfer(s)? (c) Was that the case immediately before the transfer(s)?[8]In his submissions, Mr Singh confirmed that the Respondent did not dispute that there was an economic entity or that it had been transferred. The issues to be decided were therefore whether the economic entity retained its identity following the transfer and, if so, whether the Claimant’s employment transferred to the Respondent. FINDINGS OF FACT Before the Sale – SDT and Claimant’s roleFINDINGS OF FACT
[9]The Claimant worked for SDT Security from 1 January 2019 as a Service Engineer. SDT Security (SDT) was not a limited company. It was a business operated by Mr Martin Moore who traded as a sole trader. It is not disputed that the Claimant was employed by Mr Moore in the SDT business from 1 January 2019 until the sale to OGS in September 2022.[10]SDT installed and serviced various security systems:10.1 Domestic intruder alarms without a police response when set off;10.2 Domestic intruder alarms with a police response;10.3 Commercial intruder alarms (most with a police response);10.4 Fire alarms;10.5 CCTV; and10.6 Access control.[11]Most, but not all, of the intruder alarm systems installed and serviced by SDT were hard wired systems. A small proportion were wireless systems.[12]To install and service intruder alarms with a police response, a security system provider must have a Security Systems Alarm Inspection Board (SSAIB) or National Security Inspectorate (NSI) registration. To install and service fire alarms, a provider must have a British Approvals for Fire Equipment (BAFE) registration.[13]Four people worked in the SDT business, including the Claimant. The Claimant and Mr Moore were the only full time service engineers. Ms Dion Besley was a part time office manager. Mr Moore’s nephew also worked as an engineer from time to time when needed. This tended to be at weekends if Mr Moore needed assistance, as his nephew also had a full time job elsewhere. SDT was based in Worthing in West Sussex.[14]The Claimant’s role mostly involved servicing intruder alarms and fire alarms for a mix of commercial and domestic customers. The Claimant estimated this was 80% of his work. There was no clear breakdown of his servicing work between commercial and domestic customers. Most of the intruder alarm systems he serviced were hard wired systems although there were a few that were wireless. He did this work on his own and the customers whose systems he serviced were located mostly around the south coast. For approximately 20% of his time, the Claimant worked as “2nd hand” to Mr Moore on installations of domestic and commercial intruder alarms, fire alarms, CCTV and access control systems. Oncall Group[15]The Respondent is a wholly owned subsidiary of OGS. OGS is the holding company of the Respondent’s group. It doesn’t have any customers of its own. The Respondent is the employing entity of the group. It employs all of the employees who work in the businesses carried on by other subsidiaries in the group. The key trading companies in the group are Protect & Serve Home Security Limited (Protect & Serve) and Secure Home Systems Limited (Secure Home). Most of the other companies in the group are companies that have been acquired over time by OGS. Broadly speaking, they retain their existing customers until the customer is sold an upgraded (wireless) system or a new system, for example CCTV. All new sales go through Secure Home. The other key subsidiary in the group is On Call Technical Services Limited. This company provides engineers to all the other subsidiaries for installing and servicing systems, although the engineers are employed by the Respondent.[16]The Respondent’s group focuses on domestic security and similar systems. It no longer has the required registrations to install or service intruder systems that require a police response or fire systems. Most commercial customers for intruder alarms require a police response. Mr Hosking explained that OGS has “the odd commercial customer here or there”. The group also installs and services CCTV and “medical” systems (a button worn by vulnerable or older users that they can push if they fall or in an emergency).[17]In terms of intruder systems, the Respondent’s group installs only wireless systems, because hard wired systems are becoming obsolete due to changes in technology, including BT changes to phone systems. Many new intruder alarm systems now use GPS or an IP address. However, it services both hard wired and wireless systems. Given the group only installs wireless systems, customers with hard wired systems tend to be customers of subsidiary companies that have been acquired by the group who do not want to change to a wireless system. The Sale[18]On or around 30 September 2022 Mr Moore sold various assets of the SDT business to OGS. The asset purchase agreement (APA) setting out the terms of the Sale is not dated and the “Completion Date” in the agreement is not defined. The consideration paid by OGS was payable on completion of the Sale and Mr Hosking’s witness statement says this was on or around 30 September 2022, which is not disputed by the Claimant.[19]According to clause 2.2 of the APA (pages 96 & 97 of the Bundle) the assets acquired by OGS included:19.1 the goodwill;19.2 the benefit of all contracts relating to the SDT business including customer contracts;19.3 know-how and techniques relating to the SDT business;19.4 the business records; and19.5 the business’ Intellectual Property Rights.[20]The APA specified in Schedule 3 that there were 669 customer contracts sold to OGS and that 65% of those were domestic customers and 35% were commercial customers (page 113 of the Bundle). Broadly speaking, that equates to 435 domestic customer contracts and 234 commercial customer contracts. The contracts were not listed in the APA.[21]The APA stated at clause 9.1 that the “Employees” (defined as “persons employed by the Seller in the Business”) and their contracts shall not be transferred to OGS (page 101 of the Bundle). Notwithstanding that statement, there are clauses of the APA setting out:21.1 apportionment of employment costs (salaries, wages, holiday pay, PAYE, NICs and pension contributions) whereby OGS agreed to bear such of those costs as were attributable to the period after the “Effective Time” (although, again, this is a defined term with no definition) – clause 6.3 at page 98 of the Bundle;21.2 indemnities from Mr Moore against employment related liabilities in respect of the period before the “Effective Time” – clause 9.2(e) at page 101 of the Bundle; and21.3 an obligation on Mr Moore to deliver all national insurance, PAYE, working time and national minimum wage records to OGS on completion – Schedule 1 at page 108 of the Bundle, all of which indicated there would be a transfer of employees to OGS in connection with the Sale.[22]Mr Hosking explained that this was not the intention, and it was likely that these clauses were in the APA because a precedent from previous acquisitions was used. However, he couldn’t say for certain because he was not directly involved in the negotiation of the APA; it was Mr Vry (the Respondent’s Chairman and Mr Hosking’s co-founder) who dealt with the solicitors about the APA. The APA does not therefore accurately reflect what was intended or what happened in practice. The Claimant’s employment by the Respondent[23]Mr Vry met with the Claimant and Mr Moore shortly before the date of the Sale. The Claimant could not remember the exact date and the Respondent did not provide any evidence about the date. Ms Besley and Mr Moore’s nephew were not at the meeting. Ms Besley had decided to retire and Mr Moore’s nephew was continuing with his full time job elsewhere.[24]In the Claimant’s words, Mr Vry offered to “take on” the Claimant. The Claimant was offered a higher salary by the Respondent and the Claimant agreed. The Claimant was told by Mr Moore that his employment was transferring under the TUPE Regulations, although he was told this after his dismissal in 2023. In any event, a TUPE transfer does not appear to have been discussed in the meeting between Mr Vry, Mr Moore and the Claimant. The Claimant did not receive any document or correspondence from Mr Moore or Respondent about his employment transferring under the TUPE Regulations. Equally, the Claimant did not receive an employment contract from Respondent either, notwithstanding that the Respondent says it considered him to be a new recruit. The Claimant recalled that he was paid for outstanding accrued holiday from his time employed by Mr Moore. As far as the Respondent was concerned, it was offering Claimant employment because it often struggled to find engineers based in the south and the Claimant was paid competitively.[25]The Claimant started work for the Respondent on Monday 3 October 2022. He remembers the date clearly because it was his birthday. Mr Hosking confirmed that it was a seamless transition after the Sale – there was no interruption to business activity.[26]Mr Moore was engaged as a consultant by OGS with effect from 3 October 2022. According to the consultancy agreement he was to assist in the provision of administrative and financial information to assist OGS and also to carry out call-outs, maintenance visits, services and installations within specified business hours. He was to use reasonable endeavours to provide these services four days per week. OGS engaged Mr Moore because it considered it would be reassuring to SDT customers that Mr Moore was still involved in the business; customers knew him and it would put their minds at rest. Onward sale to Surrey Security Systems[27]On or around 30 September 2022 OGS signed an APA selling to Surrey Security Systems Limited (Surrey Security) almost all (230) of the commercial contracts and 69 of the domestic contracts it had acquired from Mr Moore (Onward Sale). Surrey Security had the required registrations and accreditations to install and service systems that required a police response and fire systems, which the Respondent’s group did not.[28]Mr Hosking’s witness statement refers to the transfer of “about 48 domestic customers who required police response” being transferred to Surrey Security but in oral evidence he agreed that the transfer of around 69 domestic contracts sounded about right.[29]According to the second APA, the Onward Sale consisted of the customer data base for those contracts, the benefit of the contracts, and customer data.[30]It is not clear from the second APA when the Onward Sale completed. The document was dated 30 September 2022, but it referred to an undefined completion date and the consideration was not required to be paid by Surrey Security to OGS until 1 December 2022, two months after the APA was signed. Mr Hosking explained that the Onward Sale would have completed on or around the day that the APA was signed because it was a simple process and the “completion obligations” on OGS in the APA (delivering various records, assets, assignment of goodwill, business contracts, databases and other documents) would have been carried out very quickly.[31]Whilst it seems unusual to complete the sale of a business and only require any payment two months later, Mr Hosking’s position is somewhat corroborated by a document on SDT letterhead dated 1 October 2022 referring to the transfer of police URNs to Surrey Security “as from 1 October 2022”. It is not clear from the document who it was sent to. Mr Moore wrote to commercial customers on 11 January 2023 to explain that their contracts were transferring to Surrey Security Systems. It is also corroborated by Mr Hoskings’ oral evidence that OGS would not want to delay because it wouldn’t want commercial customers calling and needing support or servicing that the Respondent group would not be able to provide. The Tribunal accepts that the Onward Sale to Surrey Security took effect on or around 30 September 2022. Other SDT customers after the Sale[32]At some point after the Sale from Mr Moore to OGS, the domestic customers were divided internally between two group subsidiaries – Protect & Serve and Secure Home. Mr Hosking could not identify exactly when this was but he did explain that, at the time it signed the APA for the Sale, OGS did not know which domestic customers would be assigned to which subsidiary. This is why neither Protect & Serve or Secure Homes were parties to the APA entered into with Mr Moore.[33]There was no legal assignment or novation of the customer contracts from OGS to Protect & Serve or Secure Home. There was also no other formal paperwork documenting this division of domestic customers. Mr Hosking and Mr Vry decided between them which customer should be allocated to which of the two subsidiaries. What the allocation meant in practice was that revenues for that customer would go to that particular subsidiary, not OGS. This is because OGS did not have any customers; within the group it was treated as a holding company only.[34]The businesses of Protect & Serve and Secure Home were effectively the same and they were both ultimately managed by Mr Hosking and Mr Vry. New customers contracted with Secure Home, but Mr Hosking explained there was no particular reason for that. Essentially, SDT domestic customers paying annually or in advance were allocated to Secure Home, because its customers tended to buy in advance; SDT domestic customers who paid via direct debit were allocated to Protect & Serve because nearly all of its customers paid monthly.[35]Protect & Serve and Secure Home informed these customers in person that their contract was being moved to Protect & Serve or Secure Home. OGS found that this was more reassuring for customers than receiving a letter. Mr Hosking estimated that the process of informing customers via personal visits would have taken approximately a month.[36]Mr Hosking did not know how many SDT domestic customers went to Protect & Serve or how many went to Secure Home. He also did not know the volume of work that this involved for Protect & Serve or Secure Home or the value of the contracts that were allocated to Protect & Serve versus Secure Home. The Claimant’s role after the Sale[37]The Claimant initially underwent three days’ training with Respondent. His role was somewhat different to the role he undertook at SDT.[38]After the Sale, the servicing he did for domestic intruder alarms was mostly wireless alarms, although he serviced some hard wired systems – helping other engineers if they couldn’t do it. He also serviced CCTV and medical alarm systems. He was no longer servicing fire alarms. He was also doing installations mostly (although not exclusively) on his own, rather than as a 2nd hand to another engineer, and for a larger proportion of his time. This was for wireless intruder alarms, CCTV and medical alarm systems. While he was servicing he was also expected to “upsell” newer or additional systems, such as wireless intruder alarms or CCTV. The Claimant was comfortable doing this.[39]Servicing a wireless intruder alarm, as opposed to a hard wired alarm, involved some different activities, but they were not completely different. The work still involved climbing ladders, making sure the equipment worked, going through the connections and checking the alarm box. The Claimant described the servicing activity as relatively simple – the same system but wireless. The Tribunal accepts the Claimant’s evidence on this point.[40]The Claimant was also covering a wider geography after the Sale. Previously he had covered West Sussex and around the south coast. Afterwards he also covered Kent and Surrey.[41]The servicing of the hard wired intruder alarms of SDT’s former domestic customers was still being carried out by the Respondent’s group, but it was being done largely by two other engineers. The Respondent did not give this work to Claimant. Mr Hosking explained this was because the Respondent group wanted a sales person to go to the former SDT customers, to upsell them to a wireless system. THE RELEVANT LAW LegislationTHE RELEVANT LAW
[42]The relevant statutory provisions are in the ERA and the TUPE Regulations: ERA 94.— The right.(1) An employee has the right not to be unfairly dismissed by his employer. […] 108.— Qualifying period of employment. (1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination. TUPE Regulations 2.— Interpretation (1) In these Regulations— […] “relevant transfer” means a transfer or a service provision change to which these Regulations apply in accordance with regulation 3 and “transferor” and “transferee” shall be construed accordingly […] 3.— A relevant transfer (1) These Regulations apply to— (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; […](2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. 4.— Effect of relevant transfer on contracts of employment (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. Case law[43]The legal principles to be applied where there is an allegation of dismissal following a TUPE transfer were set out by the EAT in Cheesman and others v R Brewer Contracts Ltd 2001 IRLR 144: “The decisive criterion for establishing the existence of a transfer is whether is whether the entity in question retains its identity, as indicated, inter alia, by the fact that its operation is actually continued or resumed. […] In considering whether the conditions for existence of a transfer are met it is necessary to consider all the factors characterising the transaction in question but each is a single factor and none is to be considered in isolation. Amongst the matters falling for consideration are the type of undertaking, whether or not its tangible assets are transferred, the value of its intangible assets at the time of transfer, whether or not the majority of its employees are taken over by the new company, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, in which they are suspended. […] In determining whether or not there has been a transfer, account has to be taken, inter alia, of the type of undertaking or business in issue, and the degree of importance to be attached to the several criteria will necessarily vary according to the activity carried on.”[44]In applying that test the Tribunal must focus on the entity transferred rather than on the nature of the transferor’s and the transferee’s businesses as a whole and whether they were different from each other – Playle and ors v Churchill Insurance Group Ltd and ors EAT 570/98.[45]To retain its identity post-transfer, an economic entity does not have to continue to be operated as an organisationally autonomous part of the business provided that a functional link between the various elements of the transferred economic entity is preserved and that link enables the transferee to use those elements to pursue an identical or analogous economic activity – Klarenberg v Ferrotron Technologies GmbH 2009 ICR 1263.[46]There is nothing to suggest that an economic entity ceases to retain its identity merely because the economic entity is subsumed into the transferee’s business. It is sufficient that the transferred undertaking retains its identity immediately after the moment of the transfer – Farmer v Danzas (UK) Ltd EAT 858/93.CONCLUSIONS
[47]The Tribunal heard submissions from Mr Singh and the Claimant.[48]In summary, Mr Singh submitted that SDT did not retain its identity in any way because:48.1 Customers of SDT were dispersed over three companies: Surrey Security; Protect & Serve; and Secure Home;48.2 There were differences between the operations at the Respondent’s group and SDT. The Respondent:(a) Did not deal with commercial alarms;(b) Did not deal with fire alarms;(c) Did not install or generally service wired alarms; and(d) Did not carry out regulated work requiring SSAIB or NSI membership, which essentially meant Respondent did not provide police response systems;48.3 After the Sale the Claimant: (a) worked on a new customer base in a wider geography and generally did not see any former SDT customers; and (b) carried out activities that were different from his work at SDT;48.4 The APA for the Sale did not provide for any employees to be transferred under the TUPE Regulations to the Respondent’s group;48.5 The document appearing to be sent to Sussex Police notified them of the cessation of operations of SDT; and48.6 Mr Moore was taken on as a consultant (not an employee).[49]In his submissions the Claimant re-iterated that he considered his employment transferred under the TUPE Regulations to the Respondent because:49.1 He was told by Mr Vry that the Respondent’s group would keep him on and this led him to believe he was transferring under the TUPE Regulations;49.2 Mr Vry did not mention beforehand most of the changes that took place with his role. He simply mentioned there would be new (wireless) systems to learn and that he would also be installing as well as servicing; and49.3 At no time did the Respondent lead him to believe he was a new employee:(a) If the Respondent had considered him to be a new employee he would have been given details of his employment in writing;(b) He was not given a contract of employment and the reasons given by Mr Hosking did not explain this. Surely the Respondent had a standard employment contract and Respondent had plenty of time to give him a new contract – he was working for around three months before he went off sick;(c) The Respondent paid him for the untaken holiday that had accrued while he was working for SDT; and(d) Mr Moore confirmed to Claimant (albeit after the Claimant’s dismissal) that as far as he was concerned, the Claimant had transferred to Respondent under the TUPE Regulations.[50]The Claimant did not agree with certain of the submissions made by Mr Singh and evidence given by Mr Hosking:50.1 The Claimant submitted it was not right to say he never visited former SDT customers after the Sale. There were examples where he had to visit former SDT customers because the engineer sent by the Respondent group didn’t know what to do;50.2 Former SDT customers with hard wired systems continued to be serviced after the Sale, but the Respondent chose to send engineers from elsewhere (e.g. Birmingham) rather than the Claimant, who was nearby; and50.3 Notwithstanding Mr Moore being taken on as a ‘consultant’ he was still servicing hard wired systems. The Claimant considered the fact Mr Moore could do that work was likely why the Respondent engaged Mr Moore after the Sale.[51]If his employment did not transfer under the TUPE Regulations, the Claimant considered himself to have been grossly misled by the Respondent and Mr Moore. He was led to believe his employment transferred under the TUPE Regulations.[52]The Tribunal is required to apply a multi-factoral test when deciding whether the economic entity in question retained its identity after the Sale to OGS. Those factors are not to be considered in isolation. At the same time, not all of the factors have to be satisfied in order for the test to be met. The Tribunal will address each factor in turn. The type of undertaking[53]The Tribunal must focus on the identity of the entity transferred rather than the nature of the seller’s and buyer’s businesses as a whole (Playle and others, paragraph 44 above). The fact that a buyer’s business is different in nature to the business it had acquired is not material.[54]The nature of the SDT business that transferred to OGS is set out above. It installed and serviced various types of security systems (paragraph 10). Did tangible assets transfer[55]It is clear from the APA between Mr Moore and OGS that tangible assets transferred, including goodwill, IP rights, know-how and 669 customer contracts, albeit 299 of those contracts were almost immediately sold by OGS to Surrey Security. Value of intangible assets at the time of the transfer[56]This is not known as the consideration set out in the APA between Mr Moore and OGS does not apportion the consideration between the tangible and intangible assets. Whether the majority of employees were taken over by the buyer[57]There were three employees working in the SDT business, including the Claimant. (This does not include Mr Moore’s nephew who did some ad hoc work at weekends when needed and had a full time job elsewhere.) The office manager decided to retire. The remaining employees were Mr Moore and the Claimant. Both of them worked for Respondent’s group after the Sale, albeit it Mr Moore signed a consultancy agreement. Under that agreement Mr Moore continued to install and service security systems and agreed to do so for four days per week during specified business hours. The fact that he was engaged under the terms of a consultancy agreement does not mean that he was not actually an employee or a worker or that his employment did not transfer under the TUPE Regulations. The Tribunal therefore finds that the majority of the Seller’s employees were taken on by the Respondent’s group. Whether customers are transferred to the buyer[58]SDT customers were clearly transferred to OGS. Mr Singh submits that they were then immediately dispersed between three different companies.[59]The Tribunal accepts that 299 customer contracts were immediately sold by OGS to Surrey Security. These were contracts that required a police response or for fire systems, neither of which Respondent’s group was able to install or service because none of its group companies were SSAIB, NSI or BAFE registered. This represented 45% of the customer contracts that were transferred from the SDT business to OGS.[60]However, the Tribunal does not accept that the remaining customers of SDT (domestic contracts that did not require a police response) were allocated to Protect & Serve and Secure Home in such a way that impacted the retention of identity of the SDT business.[61]Firstly, as outlined in the findings of fact above, the division, such as it was, did not happen straight away.[62]Secondly, the customer contracts were acquired by OGS under the terms of the APA but there was no formal assignment or novation of the customer contracts from OGS to Protect & Serve or Secure Home. Mr Vry and Mr Hosking simply decided to allocate the revenues from those contracts between Protect & Serve & Secure Home.[63]The businesses of Protect & Serve and Secure Home were essentially the same – the difference between them was how customers paid, and that is how Mr Vry and Mr Hosking decided to allocate the revenues from the former SDT customers between Protect & Serve and Secure Home.[64]Subsuming an economic entity into a buyer’s business can mean that the economic entity does not retain its identity, but that does not mean that the economic entity must continue to be operated as an autonomous part of the buyer’s business in order to retain its identity (Klarenberg – paragraph 45 above). It is sufficient that the transferred undertaking retains its identity immediately after the moment of transfer (Farmer – paragraph 46 above).[65]A functional link between the elements of the economic entity which enabled the seller to use them to pursue an identical or analogous economic activity is sufficient, even if integrated into a new or different organisational structure after the transfer (Klarenberg). Here, both Protect & Serve and Secure Home were effectively carrying out the same activity as each other and were both managed by Mr Vry and Mr Hosking. Furthermore, Mr Moore had been engaged in order to reassure former SDT customers that he was still involved.[66]Taking all of these points together, the Tribunal does not find that the SDT customers were dispersed between three different companies after the Sale, but that the SDT customers were split into two: customers for intruder alarm systems requiring a police response and customers for fire systems were immediately transferred from OGS to Surrey Security. The remaining customers remained with OGS, albeit revenue from those contracts was allocated between Protect & Serve and Secure Home within approximately one month after the Sale. The degree of similarity between activities carried on before and after the transfer[67]The Respondent argues that the activities carried on in respect of the SDT business were very different after the transfer. After the Sale, activities of the transferred economic entity:67.1 Were focussed on wireless, not hard wired, intruder alarm systems;67.2 Did not include any fire alarms; and67.3 Did not carry out any regulated work, which meant it did not provide police response systems and therefore had very few commercial customers.[68]The Respondent has focused significantly on the difference between hard wired and wireless systems and the difference for the Claimant’s role after the Sale (because he was installing as well as servicing alarms). The Claimant on the other hand has described the differences between servicing wireless and hard-wired systems as less significant, as outlined in the findings of fact above. Indeed, the Respondent only required the Claimant to undergo three days’ worth of training before then sending him on jobs to install and service wireless systems. Furthermore, SDT did have some customers with wireless alarm systems. There was clearly a change in focus from hard wired intruder alarms to wireless intruder alarms after the Sale, but the Tribunal does not find that this change, in and of itself, constituted very different activities.[69]However, the Tribunal does accept that the fact work on fire alarms and police response systems (meaning most commercial customers) could not be carried out by the Respondent’s group was a material change in the activities carried out before and after the Sale. Interruption of activities[70]It is clear from both parties’ evidence that there was no interruption in the activities previously carried out by the SDT business. Domestic, non-police, systems were immediately taken over by the Respondent’s group and the contracts transferred to Surrey Security on or around the same day were taken over by Surrey Security without interruption.[71]Taking all of these factors into consideration, and in particular:71.1 the cessation of work relating to fire systems and police response intruder alarm systems due to the Respondent’s group not being regulated to carry out that work; and71.2 the division into two of the economic entity whereby 299 of the 699 contracts acquired by OGS were almost immediately sold to Surrey Security (equating to 45% of the customer contracts acquired by OGS), the Tribunal finds that the economic entity that transferred to the Respondent’s group did not retain its identity.[72]This means that, in terms of the first issue to be decided, there was no relevant transfer of the SDT business to the Respondent group under the TUPE Regulations.[73]This also means that that the Tribunal is not required to decide the second issue. Without any transfer of the business (or part of it) under the TUPE Regulations, the Claimant’s employment could not transfer to the Respondent under the TUPE Regulations.[74]The Tribunal has a great deal of sympathy for the Claimant. He was not clearly communicated with by either Mr Moore or the Respondent at the time of the Sale and he was not given an employment contract. He was left in the dark. Regrettably, the changes to the SDT business and its fragmentation between the Respondent group on the one hand and Surrey Security on the other means that the legal test for a TUPE transfer is not met and therefore that the Claimant’s continuous employment began on 30 September 2022, not 1 January 2019 when he started work for Mr Moore in the SDT business. This in turn means that the Claimant does not have sufficient service to bring an unfair dismissal claim against the Respondent under section 94 of the ERA.[75]Considering all of the above, the Tribunal concludes that the Claimant’s contract of employment did not transfer to the Respondent pursuant to the TUPE Regulations. The complaint of unfair dismissal is therefore dismissed because the Tribunal does not have jurisdiction to determine it. Approved by: