Mr J Coles and others v Vibe Marketing Group Ltd and others: 1400481/2018 and others

EMPLOYMENT TRIBUNALS

Case No 1400481/2018, 1400662/2018

Venue Exeter

Hearing 17 and 18 September 2018

Between

Mr J Coles and othersClaimant

Vibe Marketing Group Ltd and othersRespondent

Before

Employment Judge N J Roper

Date 12 April 2019

JUDGMENT

[1]The correct name of the first respondent is Vibe Marketing Group Ltd and the record is amended accordingly; and

[2]There was a relevant TUPE transfer from the first respondent to the second respondent on 16 January 2018; and

[3]The third, fourth and fifth respondents are all dismissed from these proceedings.

REASONS

[1]This is the judgment following a Preliminary Hearing to determine the correct respondent to the claimants’ claims to include whether or not there was a relevant transfer under the TUPE Regulations.

[2]I have heard from Mr Arnold of Counsel on behalf of 26 of the claimants. Another claimant Mrs Routley appeared in person. The 28th claimant Laura Addy was not represented by Mr Arnold and did not attend. The first respondent has recently changed its name to Vibe Marketing Group Ltd, and the record is amended accordingly. The first respondent did not attend, and neither did the second respondent Mr David Duncan Williams. The third respondent Mr Peter Robert Masters appeared in person, and the fourth respondent was represented by Mr Moore of Counsel. The fifth respondent did not attend.

[3]I find the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to such factual and legal submissions as were made by and on behalf of the respective parties.

[4]By way of general background this is a group claim brought by 28 employees following their dismissals by reason of redundancy from a newspaper business which controlled(i) the Cornish based Sunday Independent and

(ii) other newspaper titles in and around East Devon and Dorset known as the View From titles. On 4 January 2018 all of the claimants except Mrs Routley were given notice of dismissal. They may have been dismissed summarily on that date, but equally they may have been given notice of dismissal and/or sent home on gardening leave. That point was not listed to be determined today. Mrs Routley’s claim is different in that she alone was given notice of dismissal on 18 December 2017.

[5]By a group claim form presented on 5 February 2018 all of the Claimants (except Mrs Routley) have brought complaints of unfair dismissal under sections 94 and 98(4) of the Employment Rights Act 1996 (“the Act”), entitlement to statutory redundancy entitlement, for breach of contract in respect of their notice pay, for unlawful deductions from wages, for failure to consult on a TUPE transfer, and for protective awards following lack of collective consultation on the redundancies.

[6]Mrs Routley’s claim under reference 1400662/2018 was issued on 19 February 2018 claiming unfair dismissal and other payments, and named View From Newspapers Limited and the Sunday Independent Limited as respondents (although they are the same company, for which see further below) and referred to the second respondent Mr Williams, who entered a response personally against that claim.

[7]The first respondent is a limited company with company number 10724859 which was incorporated on 13 April 2017. It has changed its name repeatedly. On 13 April 2017 it changed its name to SI (Cornwall) Ltd. On 30 May 2017 it changed its name to The Sunday Independent Limited. On 16 January 2018 it changed its name to View From Newspapers Limited. On 16 March 2018 it changed its name to West Country Media Holdings Limited. Finally, on 8 August 2018 it changed its name to Vibe Marketing Group Limited. Until 16 January 2018 the third respondent Mr Peter Robert Masters was the Cases Numbered 1400481/2018 and 26 Others And Case Number 1400662/2018 3 sole shareholder of the first respondent, and on that date the second respondent Mr David Duncan Williams became the sole shareholder.

[8]The history of this matter is complicated, and essentially involves two separate newspaper businesses. The first is The Sunday Independent, which is a Sunday newspaper based in Cornwall. The second relates to other West Country titles based in Dorset which covered Dorset and South Somerset, including Pullman’s View, and various View From titles. This second part of the business is referred to in this judgment as the View From business.

[9]In early 2017 the Sunday Independent and the View From businesses were separate. On 13 April 2017 the third respondent Mr Peter Robert Masters formed the first respondent which at that stage was named S.I.Cornwall Limited (registered company number 10724859). He was the sole shareholder and director. Through that limited company he purchased the business and title of the Sunday Independent, which business at that stage was in administration. The purchase included all assets and liabilities of the Sunday Independent business, and this included the intellectual property and all employees. As noted above, the first respondent then changed its name to The Sunday Independent Limited on 30 May 2017.

[10]Meanwhile the separate View From business based in Dorset was also in administration, and owned by Capital Media Newspapers Limited (in Administration). On 14 July 2017 the first respondent also purchased the View From business from that company’s administrators, which were effectively the titles being Pulman’s View and the other View From titles. Following these two acquisitions, the first respondent continued to operate its Sunday Independent business from Cornwall and the View From business from Lyme Regis in Dorset. They remained as separate businesses.

[11]All of the claimants were employed in the View From business and on 14 July 2017 the claimants’ employment therefore transferred from Capital Media Newspapers Limited (in Administration) to the first respondent (then called the Sunday Independent Limited).

[12]Subsequently, and with the exception of Mrs Routley (who had already been dismissed on 18 December 2017), on 4 January 2018 the first respondent dismissed all of its employees by reason of redundancy. I make no findings as to whether they were dismissed summarily on 4 January 2018, or alternatively given notice of dismissal or sent home on gardening leave pending consideration of their futures. That point will be determined at the full main hearing of their claims.

[13]The potential closure of the first respondent’s business was announced at this stage, and the third respondent says that he was involved in discussions about the potential purchase of both aspects of the first respondent’s business (the Sunday Independent and the View From titles), and so was the second respondent Mr David Duncan Williams.

[14]On 15 January 2018 the fourth respondent, (namely The Sunday Independent News Limited) purchased the Sunday Independent assets of the first respondent, but not the View From business. The relevant asset purchase agreement defined the business which was purchased as “the publication of a Sunday Newspaper under the business name the Sunday Independent”, and which specifically excluded the View From business (for whom all of the claimants had worked).

[15]On 16 January 2018 therefore the first respondent only owned the View From business. A number of events and transactions then followed, all of which took place on 16 January 2018. In the first place the first respondent changed its name to View From Newspapers Limited, and the third respondent Mr Masters sold his entire shareholding in that company (the first respondent) to the second respondent Mr Williams. The entire shareholding was in fact one ordinary share of £1.00. The third respondent Mr Masters then resigned as a director, and the second respondent Mr Williams became the sole director of the first respondent. The second respondent Mr Williams, who now owned and controlled the first respondent, transferred the Intellectual Property in the first respondent to his personal ownership.

[16]That finding of fact, namely that the second respondent Mr Williams transferred the Intellectual Property in the first respondent to his personal ownership on 16 January 2018, is an important finding of fact, and is made for the following reasons. I have seen a Cases Numbered 1400481/2018 and 26 Others And Case Number 1400662/2018 4 deed which was prepared and dated 16 January 2018. I have not seen an executed copy of this agreement which may be a draft, but nonetheless it had been prepared. Effectively it was a deed of purchase of the goodwill in the business of the first respondent (then called View From Newspapers Limited) which defined the goodwill as “the customer and supplier database and all other intellectual property in the Business Name and the Titles.” The business name and titles were defined as “View From Newspapers” and “Pulman’s Weekly News Series”.

[17]This is consistent with other documents which indicate that the second respondent Mr Williams held the intellectual property and other business rights in the View From business for himself, and that the first respondent company was no more than a shell, and that the third respondent Mr Masters was by this stage no longer involved in the business. For example, on 31 January 2018 the second respondent Mr Williams sent an email from “Williams Publishing” to the effect that he was the “Proprietor, View From Newspapers Limited”. An undated blog or posting from @ViewNewsUK shows that the second respondent Mr Williams had personally posted an item referring to himself as “a News Media professional”, and explaining the positive news “We’re Back!” with the comment that “View News were now partners with The Vibe Marketing to offer digital advertising solutions to all our clients”. The second respondent Mr Williams also gave an interview to Hold The Front Page which is a blog and resource for journalists. The heading reported “Media director says he has struck a deal to buy View From series” and in the interview he made it clear that the View From titles would be getting new advertisement bookings and long-term investment had been pledged by Vibe Marketing. Furthermore, by email dated 6 September 2018 to Mrs Routley, under cover of which Mr Williams the second respondent disclosed the share sale agreement dated 16 January 2018 referred to above, Mr Williams conceded that on 16 January 2018 “I transferred all brand IP’s into my name as an individual apart from Etchd Creative”.

[18]Finally, in his own grounds of resistance to these proceedings, Mr Williams the second respondent states: “I set up a crowdfund and was able to buy the newspaper titles from the then owner Peter Robert Masters. The skills I had learnt at Weymouth College would be used to upgrade the portfolio of print titles to offer increased profile to advertisers and readers ...”

[19]The second respondent Mr Williams was not present today. It is not clear the extent to which the second respondent has approached customers and potential advertisers and/or has published or tried to publish any of the titles. There may well have been a temporary cessation of the business pending resolution of this dispute. However, it is clear that even before the end of January 2018 the second respondent Mr Williams was holding himself out as the proprietor of the business, and that after 16 January 2018 there were no tangible assets in the View From business which could be said to have been left in or owned by the first respondent limited company.

[20]As noted above, on 16 March 2018 the first respondent then changed its name to West Country Media Holdings Limited. Finally, on 8 August 2018 it changed its name to Vibe Marketing Group Limited. Nonetheless there is no evidence to suggest that any aspects of the View From business, including intellectual property, goodwill, titles, or advertising contacts, had been transferred back to the first respondent limited company.

[21]Having established the above facts, I now apply the law.

[22]The relevant regulations are the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("the Regulations”).

[23]Regulation 3(1) provides that the 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;

(b) a service provision change …

[24]Regulation 3(2) provides that "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. Cases Numbered 1400481/2018 and 26 Others And Case Number 1400662/2018 5

[25]Under Regulation 3(6) a relevant transfer(a) may be affected by a series of two or more transaction; and

(b) may take place whether or not any property is transferred to the transferee by the transferor.

[26]Regulation 4(1) provides that: 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.

[27]Regulation 4(2) provides that: Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer –(a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and

(b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to the organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.

[28]Regulation 4(3) provides that: Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1)…

[29]Regulation 7(1) provides that: Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is –(a) the transfer itself; or

(b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce. The effect of Regulations 7(2) and (3) is that where there is an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer, the automatically unfair dismissal provisions of regulation 7(1) do not apply, but rather the dismissal is treated as a redundancy dismissal which is potentially fair under section 98 of the 1996 Act.

[30]Regulation 13 requires both the transferor and the transferee to consult with employees ahead of a relevant transfer. Regulation 13(2) sets out the information which must be the subject of that consultation. Regulation 16(3) allows appropriate compensation of up to 13 weeks’ pay to be ordered following a failure to consult.

[31]I have been referred to and have considered the following cases, namely: Henry v London General Transport Services Ltd

[2001] IRLR 132

EAT; Brooks v Borough Care Services

[1998] IRLR 636

EAT; Millam v Print Factory (London) Ltd

[2007] IRLR 526

CA; Smith & Others v Jackson Lloyd Limited and Mears Group UKEAT 0127/13; ECM (Vehicle Delivery Service) Ltd v Cox and others

[1999] ICR 1162

; Spijkers v Gebroeders Benedik Abattoir CV 24/85

[1986] 2 CMLR 296

; Cheesman v R Brewer Contracts Ltd

[2001] IRLR 144

EAT and Colino Siguenza v Auntamiento de Valladolid and others (7 August 2018) c-472/16.

[32]The Regulations do not normally apply to a simple share sale, because there is no change in the identity the employer in these circumstances (see for instance Henry). Even if the share sale has been arranged for the purposes of seeking to avoid the application of the Regulations, this principle still applies (see Brookes). However, whilst the Court of Appeal in Millam approved these general principles, it also emphasised that the correct question to ask is within that legal structure (of a sale of shares), whether as a matter of fact control of the business has been transferred from one employer to another. This principle was upheld in Smith & Others in which the EAT confirmed that the reality of the situation was that there had been a TUPE transfer under the Regulations despite the fact that there was a share purchase. In that case the controlling minds of the company which had been purchased by shares had been removed; the company purchased via Cases Numbered 1400481/2018 and 26 Others And Case Number 1400662/2018 6 shares was not an autonomous independent company; and it was nothing other than a trading name.

[33]In Spijkers the Court made it clear that it is important to consider the following matters:(a) the type of undertaking or business concern;

(b) whether assets, tangible or intangible, are transferred;

(d) whether customers are transferred; and

(e) the degree of similarity between the activities carried on before and after the transfer and the period, if any, for which those activities are suspended. These are single factors in an overall assessment which should not be considered in isolation. In addition, the facts characterising the transaction in question should be considered to determine whether the undertaking has continued and retained its identity in different hands (ECM (Vehicle Delivery Service) Ltd).

[34]In Cheesman, the EAT set out principles which can be distilled as to whether there is an undertaking, and principles which can be distilled as to whether there has been a transfer. However, these lists are not exhaustive and the test to be applied in considering whether there was a transfer is broad, multifactorial, and fact sensitive.

[35]In this case I find that there was a distinct undertaking. This was the business of the View From newspapers. This was a stable economic entity whose activity was not limited to performing one specific works contract and there was an organised grouping of persons and of assets which enabled or facilitated the exercise of an economic activity pursuing a specific objective. It had tangible and intangible assets. The tangible assets included a customer list of reliable potential advertisers, and the intangible assets included goodwill in the names of the newspapers, and the value of the historical connection to approach those customers for advertising business. In addition, there was an organised grouping of wage earners specifically and permanently assigned to this economic activity, and this included all of the claimants.

[36]I also find that there was a relevant transfer. I find that on 16 January 2018 the economic activity in question, namely the business of the View From newspaper titles, was transferred to the second respondent Mr David Duncan Williams personally. Although there was a transfer of the ownership of the one share in the first respondent, for the reasons set out in paragraphs 15 to 19 of the findings of fact above, I find that the effect of the transactions on or about 16 January 2018 was that the first respondent became a shell company, and that the View From business had effectively transferred to the personal ownership of the second respondent Mr David Duncan Williams. At that stage the first respondent limited company was nothing more than a trading name. The employees had all been given notice of dismissal on 4 January 2018; the third respondent Mr Masters (who had been the controlling mind) was no longer a director and was no longer involved; the assets of the first respondent company had been sold, namely the Sunday Independent business which had been purchased by the fourth respondent, and the goodwill and Intellectual Property in the View From business which had been transferred to the second respondent personally.

[37]Accordingly I find that on 16 January 2018 (and pursuant to Regulation 4(2)) all of the rights, powers, duties and liabilities under or in connection with all of the claimants’ contracts transferred to Mr Williams the second respondent.

[38]There may have been a cessation of the View From business following these events, but applying Colina Siguenza (where TUPE applied despite there having been a cessation of activities for at least five months), I do not find that this defeats the relevant transfer to the second respondent Mr Williams. It seems that the second respondent Mr Williams may have been awaiting the outcome of these proceedings before proceeding further with the View From business, but equally there is clear evidence both from his pleaded case and other contemporaneous documents that he intends to continue with the View From business and is publicising the fact that he has done so. To find in the circumstances that there was no relevant transfer to him under the Regulations would be to defeat the purpose of the Regulations which is to protect those employees who found themselves dismissed where this was arguably because of the transfer.

[39]During these proceedings the claimants consented to the third fourth and fifth respondents being dismissed from these proceedings and I make that order. Cases Numbered 1400481/2018 and 26 Others And Case Number 1400662/2018 7

[40]The remaining respondents are therefore the first respondent in connection with both the claims for unlawful deductions/breach of contract relating to pension payments (which remain with the first respondent by virtue of Regulation 10); and any potential claims that the first respondent failed to consult with the claimants in connection with the prospective transfer to the second respondent. The second respondent is the correct respondent to all of the claimants’ remaining claims (which for the avoidance of doubt includes joint and several liability for the failure to consult with the claimants in connection with the prospective transfer to the second respondent).

[41]Further case management orders have also now been made which appear in a separate order of today’s date.

[42]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 4 to 20; a concise identification of the relevant law is at paragraphs 22 to 34 how that law has been applied to those findings in order to decide the issues is at paragraphs 35 to 40. ____________________ Employment Judge N J Roper Dated 18 September 2018 Judgment sent to Parties on _______________________ _______________________ Cases Numbered 1400481/2018 and 26 Others and 1400662/2018 1 EMPLOYMENT TRIBUNALS BETWEEN Claimants Respondents Mr J Coles and 27 Others AND Vibe Marketing Group Limited(1) Mr David Duncan Williams

(2)

[1]The second respondent has applied for a reconsideration of the judgment with reserved reasons dated 18 September 2018 which was sent to the parties on 8 October 2018 (“the Judgment”). The grounds are set out in his email letter dated 8 October 2018. That letter was received at the tribunal office on 8 October 2018.

[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the Cases Numbered 1400481/2018 and 26 Others and 1400662/2018 2 parties. The application was therefore received within the relevant time limit.

[3]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.

[4]The background to this matter is as follows. The Judgment which the second respondent questions is the judgment following a Preliminary Hearing in person over two days on 17 and 18 September 2018. The main purpose of that Hearing was to determine whether there had been a relevant transfer under the TUPE Regulations 2006, and to determine which one or more of a number of respondents would be liable as the correct respondent(s) to the various claims brought by the 28 claimants following their collective dismissals.

[5]The second respondent is Mr David Duncan Williams. He was aware of these proceedings from the outset, and entered a response on his own behalf. He was given notice of the Preliminary Hearing in person, and was clearly aware of that Hearing because he corresponded with the Tribunal in connection with that Hearing (for example by email dated 12 September 2018).

[6]For reasons which have not been explained the second respondent chose not to attend the Preliminary Hearing on 17 and 18 September 2018. He did not inform the Tribunal that he would not be attending, and did not seek a postponement on the basis that he was unable to attend. As can be seen from the Judgment, the claimants attended and were represented by counsel, and the third and fourth respondents attended in person and/or were represented by counsel. All parties present were able to give oral evidence and/or to make written and oral representations before the Judgment was made. That Judgment found that there had been a TUPE transfer to the second respondent Mr David Duncan Williams.

[7]It seems from correspondence received by this Tribunal from the Employment Appeal Tribunal (“the EAT”) that the second respondent tried to make an appeal immediately after the hearing, but before the Judgment was sent to the parties. That appeal was rejected by the EAT because it was not properly constituted and did not have the relevant supporting documents. The day after the Judgment was sent to the parties on 8 October 2018, the second respondent sent an email to this Tribunal dated 9 October 2018 wishing to appeal the Judgment.

[8]I have taken that email as an application by the second respondent for reconsideration of the Judgment, on the basis that the interests of justice require it. That application was received within 14 days of the date upon which the Judgment was sent to the parties and the application was therefore made within time.

[9]The grounds relied upon by the claimant are effectively that he disagrees with the decision. Various supporting emails to the Tribunal then annexed certain documents which the second respondent suggests effectively prove that there was no TUPE transfer to him. Cases Numbered 1400481/2018 and 26 Others and 1400662/2018 3

[10]There is nothing in the second respondent’s email or supporting documents which amounts to cogent evidence which has come to light after the date of the hearing, and which was not available beforehand. There is no new information which has come to light which was not available to the second respondent before the Preliminary Hearing leading to the Judgment. The second respondent was on notice of the hearing and did not comply with orders of the Tribunal to exchange relevant documents and to agree a bundle of relevant documents for the hearing. The second respondent chose not to adduce these documents and chose not to attend the Preliminary Hearing. Neither did he submit written representations or supporting documents for consideration before the Judgment was made.

[11]The question arises in short whether it is in the interests of justice to revoke the Judgment and to hold another Preliminary Hearing at which the second respondent might attend and refer to these documents, even though all of the claimants and the third and fourth respondents engaged fully in the process when the second respondent chose not to do so.

[12]The earlier case law suggests that the interests of justice ground should be construed restrictively. The EAT in Trimble v Supertravel Ltd

[1982] ICR 440

decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.

[13]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd

[2004] IRLR 607

EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden

[2010] IRLR 743

, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.

[14]In this case all the claimants and the third and fourth respondents engaged fully in the process, complied with Tribunal orders, attended the Preliminary Hearing, when the second respondent, who was fully aware of Cases Numbered 1400481/2018 and 26 Others and 1400662/2018 4 the proceedings throughout, chose not to do so. There is no new evidence which has come to light since that Preliminary Hearing which was not available to the second respondent before that hearing and the Judgment. There must be finality in litigation, and in my judgment it is not in the interests of justice to revoke the Judgment and to hold another Preliminary Hearing over two days to re-argue the same points. To do so would cause unnecessary costs and further delay to the other parties, when the second respondent’s predicament is entirely of his own making. It is not in accordance with the overriding objective nor in the interests of justice to incur these further costs and the further delay, and to revoke the Judgment, and to relist and rehear the Preliminary Hearing.

[15]Accordingly, I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked. ________________________ Employment Judge N J Roper Dated 24 October 2018 Cases Numbered 1400481/2018 and 26 Others and 1400662/2018 5 Schedule of Claimants Case no. Claimant 1400481/2018 Mr J Coles 1400483/2018 Mr O Alner 1400484/2018 Miss K Austin 1400485/2018 Miss L Bright 1400486/2018 Mr R Briggs 1400487/2018 Miss A Budden 1400488/2018 Mr R Coombe 1400490/2018 Mr S Chan 1400491/2018 Mrs C Denslow 1400492/2018 Miss N Edmeades 1400493/2018 Miss L Filtness 1400494/2018 Miss J Glover 1400495/2018 Mrs C Hodges 1400496/2018 Mr P Hodges 1400497/2018 Mr G Kingsley 1400498/2018 Mr B Kirkby 1400499/2018 Miss C Lamb-Wilson 1400500/2018 Mr R Larcombe 1400501/2018 Mr A Larsson 1400502/2018 Miss N Moore 1400503/2018 Mrs L Quick 1400504/2018 Miss C Sutton 1400505/2018 Miss A Taylor 1400506/2018 Mr M Tipping 1400507/2018 Miss C Welch 1400508/2018 Miss R Witt 1400662/2018 Mrs A Routley

[26]Cases Numbered consecutively 1400481/2018 to 1400508/2018 (excluding case numbers 1400482/2018 and 1400489/2018) 1 EMPLOYMENT TRIBUNALS BETWEEN Claimants Respondents Mr J Coles and 25 Others AND The Sunday Independent Limited(1) Mr David Duncan Williams

(2)

[27]For these reasons we unanimously conclude that the sole or principal reason for the claimant’s dismissal was the relevant TUPE transfer. Accordingly, the dismissal of Mr Coles and the other combined 25 claimants were “automatically” unfair by reason of Regulation 7(1).

[28]In any event, even if there had not been a TUPE transfer, the claims would clearly be unfair under normal principles in accordance with section 98(4) of the Act. There was no warning to the various employees; there was no consultation; there was no selection process; no consideration of reasonable alternative employment; and no appeal process. For these reasons we would have held the claimant’s dismissal to have been unfair, and also that of the other claimants, in any event.

[29]In addition, we find that there was a breach of Regulation 13 by both the First Respondent (the transferor) and the Second Respondent (the transferee) because there was no consultation by either respondent, let alone any consultation which included the required information in Regulation 13(2).

[30]To the extent that any claimant had five years’ service or more, that claimant would have been entitled to five weeks’ notice of termination of employment, up to a maximum of 12 weeks. Similarly, to the extent that the appropriate statutory minimum period of notice is Case Number: 1400481/2018 5 not given, any such claimant succeeds and the claim for breach of contract in respect of the balance of the notice period over the one-month notice which was given. In the case of this claimant Mr Coles, who commenced employment in November 2009, his contractual notice entitlement was eight weeks. He succeeds in his claim for breach of contract in respect of the balance of four weeks’ notice.

[31]Finally, we turn to the claims relating to the failure to pay the relevant pension payments. Mr Coles succeeds in his claim for breach of contract in respect of the First Respondent’s failure to pay the 3% employer contributions as agreed for the six months from July to December 2017 inclusive.

[32]In addition, during the same period, the First Respondent deducted 3% of the claimant’s salary by way of employee contributions. These deductions were only authorised by the claimant by way of payments which were to be made to the relevant pension provider, and which were not made as required. They were therefore unauthorised deductions. The claimant also succeeds in his claim against the First Respondent for unlawful deduction from wages in this respect.

[33]Finally, each of the claimants succeeds in his or her claim for unlawful deduction from wages in respect of the four days worked but unpaid between 1 and 4 January 2018.

[34]The appropriate remedy for Mr Coles is dealt with in the attached Remedy Judgment.

[35]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 7 to 14; a concise identification of the relevant law is at paragraphs 16 to 23; how that law has been applied to those findings in order to decide the issues is at paragraphs 24 to 33; and how the amount of the financial award has been calculated is dealt with in the attached Remedy Judgment. ____________________ Employment Judge N J Roper Dated 20 March 2019 Judgment sent to Parties on 27 March 2019 For the Tribunal Office Case No. 1400481/2018 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondents Mr James Coles AND The Sunday Independent Limited(1) Mr David Duncan Williams

(2)

[1]The correct name of the First Respondent is the Sunday Independent Limited and the record is amended accordingly; and

[2]This judgment should be read in conjunction with the judgment following a preliminary hearing dated 18 September 2018, and a judgment determining the claimant’s claims as the lead claimant against the same respondents dated 20 March 2019. Both judgments are under Tribunal reference 1400481/2018. The reasons explained in those judgments, and with the exception of any claims relating to pension payments, any liability of the First Respondent under these claims has passed to the Second Respondent.

[3]The claimant is entitled to a statutory redundancy payment of £3,845.52 (8 weeks at £480.69 gross per week); and Case No. 1400481/2018 2

[4]The claimant was unfairly dismissed by the First Respondent by reason of a TUPE transfer. The Second Respondent is ordered to pay the claimant compensation for unfair dismissal in the sum of £14,710.23. No award is made for the Basic Award, because the claimant is entitled to a statutory redundancy payment. The Compensatory Award is calculated as follows: Net Loss to today £8,860.27; Future Loss £5,549.96; and Loss of Statutory rights £300.00.

[5]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (“the Recoupment Regulations”) apply in this case. The Prescribed Element is £8,860.27 and the Period of the Prescribed Element is from 4 February 2018 to 20 March 2018. The Grand Total is £14,710.23, and the Excess of the Grand Total over the Prescribed Element is £5,849.96.

[6]The First Respondent and the Second Respondent failed to consult on a prospective TUPE transfer, and they are ordered to pay the Claimant thirteen weeks’ pay in the sum of £6,248.97 (13 x £480.69); and

[7]The claimant succeeds in his claim for breach of contract in respect of his contractual notice entitlement and the Second Respondent is ordered to pay the claimant eight weeks’ wages in the net sum of £2,904.40; and

[8]The claimant succeeds in his claim for breach of contract and the First Respondent is ordered to pay the Claimant the missing employer contributions for the six months from July to December 2017 amounting to £382.50; and

[9]The claimant succeeds in his claim for unlawful deduction from wages and the First Respondent is ordered to pay the Claimant the sum of £1,099.93, which consists of the missing employee contributions for the six months from July to December 2017 amounting to £892.48, and four days’ net pay from 1 to 4 January 2018 in the sum of £207.45.

[10]Where appropriate we consider the above awards to be just and equitable. ________________________ Employment Judge N J Roper Dated 20 March 2019 Case No. 1400481/2018 3 Judgment sent to Parties on 27 March 2019 For the Tribunal Office Case No. 1400481/2018 4 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 1400481/2018 Name of case(s): Mr J Coles v 1. The Sunday Independent Ltd 2. Mr David Duncan Williams The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 27 March 2019 "the calculation day" is: 28 March 2019 "the stipulated rate of interest" is: 8% MISS Z KENT For the Employment Tribunal Office Case No. 1400481/2018 5 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE

[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/publications/employment-tribunal-hearings-judgmentguide- t426 If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.

[2]The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”.

[3]The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged.

[4]“Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet).

[5]Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal.

[6]‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 1400481/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mr J Coles First Respondent: The Sunday Independent Ltd Second Respondent: Mr David Duncan Williams CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Judgment on Remedy sent to the parties on 27 March 2019, is corrected as underlined at paragraph 5. _____________________________ Employment Judge Roper Date: 29 March 2019 ______________________________ SENT TO THE PARTIES ON 3 April 2019 FOR THE TRIBUNAL OFFICE Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. Case No. 1400481/2018 2 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondents Mr James Coles AND The Sunday Independent Limited (1) Mr David Duncan Williams (2)

[1]The correct name of the First Respondent is the Sunday Independent Limited and the record is amended accordingly; and

[3]The claimant is entitled to a statutory redundancy payment of £3,845.52 (8 weeks at £480.69 gross per week); and Case No. 1400481/2018 3

[5]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (“the Recoupment Regulations”) apply in this case. The Prescribed Element is £8,860.27 and the Period of the Prescribed Element is from 4 February 2018 to 20 March 2019. The Grand Total is £14,710.23, and the Excess of the Grand Total over the Prescribed Element is £5,849.96.

[10]Where appropriate we consider the above awards to be just and equitable. ________________________ Employment Judge N J Roper Dated 20 March 2019 Case No. 1400481/2018 4 Judgment sent to Parties on 27 March 2019 For the Tribunal Office Case No. 1400481/2018 5 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 1400481/2018 Name of case(s): Mr J Coles v 1. The Sunday Independent Ltd 2. Mr David Duncan Williams The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 27 March 2019 "the calculation day" is: 28 March 2019 "the stipulated rate of interest" is: 8% MISS Z KENT For the Employment Tribunal Office Case No. 1400481/2018 6 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE

[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/publications/employment-tribunal-hearingsjudgment- guide-t426 If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.

[6]‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 1400481/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mr J Coles First Respondent: The Sunday Independent Ltd Second Respondent: Mr David Duncan Williams CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Judgment on Remedy sent to the parties on 27 March 2019 and Amended Judgment sent to the parties on 3 April 2019, is further corrected as underlined at paragraph 9. _____________________________ Employment Judge Roper Date: 12 April 2019 ______________________________ SENT TO THE PARTIES ON 12 April 2019 FOR THE TRIBUNAL OFFICE Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. Case No. 1400481/2018 2 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondents Mr James Coles AND The Sunday Independent Limited (1) Mr David Duncan Williams (2)

[1]The correct name of the First Respondent is the Sunday Independent Limited and the record is amended accordingly; and

[3]The claimant is entitled to a statutory redundancy payment of £3,845.52 (8 weeks at £480.69 gross per week); and Case No. 1400481/2018 3

[5]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (“the Recoupment Regulations”) apply in this case. The Prescribed Element is £8,860.27 and the Period of the Prescribed Element is from 4 February 2018 to 20 March 2019. The Grand Total is £14,710.23, and the Excess of the Grand Total over the Prescribed Element is £5,849.96.

[10]Where appropriate we consider the above awards to be just and equitable.