Miss K Kolodziejczyk v Abakus 2 Ltd and others: 2405712/2020 and 2415249/2020

EMPLOYMENT TRIBUNALS

Case No 2405712/2020, 2415249/2020

Between

Miss K KolodziejczykClaimant

Abakus 2 Ltd and othersRespondent

Before

Employment Judge Phil Allen

Date 5 July 2021

JUDGMENT

[1]The claimant’s employment was not transferred from the first respondent to the second or third respondent under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

[2]The claims against the second and third respondents are dismissed.

[3]The claim for a protective award for breach of the obligation to inform and consult under regulation 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 is dismissed as there was no relevant transfer of the claimant’s employment and the Tribunal does not have jurisdiction to consider the claim as it was not brought within the time required.

[4]The claimant’s claim against the first respondent for unfair dismissal was presented within the time required, and the Tribunal does have jurisdiction to consider that claim. The claimant was dismissed on 17 June 2020.

[5]The claimant’s claims against the first respondent for unlawful deduction from wages and in respect of accrued but untaken annual leave, will proceed to the final hearing as it appears that the Tribunal will have jurisdiction to consider those claims based upon the date of termination of employment and/or the date when the last payment(s) were due.

REASONS

[1]The claimant was employed by the first respondent from 6 April 2008. On 19 May 2020 the claimant brought a claim for unlawful deductions from wages and/or non-payment of accrued but untaken annual leave. On 22 September 2020 the claimant brought a second claim for unfair dismissal, unlawful deduction from wages, non-payment of annual leave and for failure to consult under the TUPE Regulations. The second and third respondents were joined to the claim as the first respondent contended that the claimant's employment had transferred on 16 March 2020. The claimant contended that she was dismissed by the first respondent on 17 June 2020. Claims and Issues

[2]There have been three preliminary hearings (case management) conducted in this claim on 6 October 2020, 1 March 2021 and 19 April 2021. At the third preliminary hearing on 19 April 2021 a number of preliminary issues were identified and recorded at paragraph 6 of the Case Management Order. At the start of this hearing it was confirmed with the parties and agreed that the issues to be determined were the three issues identified by Employment Judge Buzzard at the preliminary hearing on 19 April 2021.

[3]The preliminary issues to be determined were the following:(a) Whether the claimant's employment was transferred within the scope of the TUPE Regulations, and if so who the correct respondent(s) to the claimant's claims are;

(b) If there was a TUPE transfer, whether the claimant’s claims are against the second respondent or the third respondent; and

(c) Whether any of the claimant's claims were presented out of time, and if so whether an extension of time should be granted such that the claim can proceed.

[4]At the start of the preliminary hearing the claimant accepted the contention put forward by the representative of the second/third respondents, that if the claimant did transfer she would have transferred to the third respondent (being the company) rather than to the second respondent personally. Accordingly, question (b) did not need to be determined by the Employment Tribunal as, if there was a TUPE transfer, the claimant's employment would have transferred to the third respondent not to the second respondent.

Procedure

[5]The claimant was represented by Mr Szulecki, a non-legal representative without Tribunal experience. The first respondent was represented by Mr Munro, solicitor. The second and third respondents were both represented by Mr Taylor, solicitor.

[6]The hearing was conducted by CVP remote video technology. The parties and all witnesses attended remotely and gave evidence by video.

[7]The Tribunal was provided with two bundles of documents, albeit that the bundles largely duplicated each other. The bundles were 128 pages and 164 pages, with the latter bundle being the one described as being agreed by the respondents’ representatives. On occasion during the hearing different attendees had different versions of the bundle, but all documents highlighted from either bundle were considered by the Tribunal.

[8]The Tribunal was provided with witness statements in advance of the hearing. These were witness statements prepared by: the claimant; Mr Robert Faryna, the Director of the first respondent; and Mrs Marlena Doros-Nowak, the Managing Director of the third respondent (and the second respondent). In advance of the hearing the Tribunal read the three witness statements and the documents referred to in those statements. The Tribunal also identified and read certain documents in the bundle it was evident needed to be considered, such as the contracts of employment under which the claimant had been employed by the first respondent.

[9]At the start of the hearing when the second agreed bundle was provided, the parties also notified the Tribunal of certain additional pages which needed to be read, and the Tribunal read those pages at the start of the hearing. The Tribunal only read pages in the bundles to which it was either referred during the hearing, which were referred to in the statements, or which it was self-evident needed to be read in order to consider the claim.

[10]The Tribunal heard evidence from each of the witnesses from whom a statement had been provided, and each of those witnesses was cross examined by the representatives of the other two parties, as well as being asked questions by the Tribunal. For all three witnesses English was not their first language. On occasion each of the witnesses struggled with cross examination and, in particular, with more legalistic and technical questions. The issue of an interpreter had been considered by Employment Judge Buzzard at the hearing on 19 April 2021, but in respect of the claimant only. In circumstances where the claimant was represented and where Employment Judge Buzzard did not believe that the claimant’s evidence was likely to be challenged, it was decided that an interpreter would not be booked. The Case Management Orders recorded that if the claimant believed that an interpreter needed to be booked for the hearing she was to inform the Tribunal by 20 June 2021. None of the parties identified that an interpreter was required. The Tribunal was keen to ensure that that if at all possible the preliminary issue was heard and the evidence considered at the hearing as listed, on the basis that all of the parties were prepared and ready to address the issues. All of the parties were given the opportunity to ask for the hearing to be postponed so that an interpreter could be obtained for a later hearing, and all the parties declined to do so. On that basis, the case proceeded and the evidence was heard. The evidence was provided by all three witnesses in English. On a number of occasions, the question asked needed to be clarified so that the relevant witness understood the question. The Tribunal was satisfied that each witness was able to respond to the questions asked on the material issues.

[11]In advance of the hearing the Tribunal was provided with a skeleton argument prepared by the claimant, a skeleton argument prepared on behalf of the second and third respondents, a chronology of events prepared for the first respondent, and a document prepared in response to alleged discrepancies in the second and third respondents’ skeleton argument by the claimant's representative. At lunch time during the hearing the Tribunal was also provided with a skeleton argument prepared on behalf of the first respondent and with a closing submission document prepared on behalf of the third respondent. All those documents were read and considered by the Tribunal.

[12]After the evidence was heard, each of the parties was given the opportunity to make oral submissions. The representative for the second and third respondents relied entirely on the closing submission document he had prepared. The Tribunal did also ask a limited number of questions of the representative. The representative for the first respondent then made oral submissions to supplement the skeleton argument provided. The claimant’s representative also made oral submissions. The Tribunal asked questions of all of the representatives and, after an issue was raised by the claimant's representative in his submissions, returned to each of the representatives to seek their view on the particular issue.

[13]As the time allocated for hearing was fully utilised hearing the evidence and submissions, judgment was reserved and accordingly the Tribunal provides the Judgment and Reasons outlined below on the preliminary issues identified above.

Facts

[14]The claimant worked for the first respondent from 6 April 2008. A contract was signed on 5 November 2008. That contract described the claimant as a Sales Assistant. In the contract the employer was stated to be Mr Faryna, although there was no dispute that the claimant was actually employed by the first respondent. In respect of place of work, the contract said, “The normal place of work will be at the Employer’s address shown above”. The address was 295 Palatine Road, Manchester. The claimant was employed at the Abakus shop at that address, which at the time was the only shop run by the first respondent. It was a store which sold groceries. The claimant worked full-time until she went on maternity leave in 2013.

[15]In November 2011 the first respondent opened a second shop, which was described during the hearing by the name Tecza. Tecza was a larger shop than Abakus.

[16]The claimant signed a new contract of employment with the first respondent on 1 March 2013. That contract provided that the claimant's job title was Store Manager. In respect of place of work, the contract provided, “You will be require to work at the different location/shops”. The claimant’s representative submitted that the contract had been entered into because the claimant took on the wider role of Store Manager. Whilst giving evidence, Mr Faryna explained that the reason why he introduced the new contract was because the Abakus-based staff did not like being asked to work in the other store, and he wanted to introduce a contract that made clear that they could/would be required to work in both locations.

[17]The claimant returned to work from maternity leave in 2014 and agreed with Mr Faryna that she would work part-time hours. The claimant described her hours in her witness statement as usually two or three days a week, 16 hours per week. The evidence from both the claimant and Mrs Doros-Nowak was that Mrs Doros-Nowak worked five days per week in the Abakus store and the claimant worked the other two days. The store was open seven days per week. There was no evidence provided of anyone else working in the shop at the same time as Mrs Doros-Noway or the claimant.

[18]In January 2017 the claimant was suspended. The issue that resulted in the suspension was ultimately resolved, but the claimant did not return to actually attending the work-place as she commenced a second period of maternity leave in August 2017 which followed from the period of suspension. From July 2018 the claimant had a period of absence on ill health grounds. In January 2019 the claimant had a third period of maternity leave which lasted until January 2020. There was no dispute between the parties that, as a result of the various types of leave, the last date upon which the claimant actually attended work with the first respondent was prior to her suspension in January 2017.

[19]On 4 November 2019 the claimant wrote to Mr Faryna, highlighted the accrued annual leave which she had accumulated, and asked to take that leave from 14 January 2020 until 4 May 2020. On 25 November 2019 Mr Faryna responded to the claimant confirming that the request to book leave was accepted and confirming that the end of the claimant's holiday leave would be 4 May 2020.

[20]On 5 February 2020 the claimant was paid £1,011.06 net pay. The payslip recorded this as all being holiday pay less National Insurance deductions. The claimant's evidence was that this was less than she had expected. As this hearing was not arranged to determine the final issues regarding annual leave and/or unlawful deduction from wages, no decision is reached as to exactly what the payment related to, save that it was clearly a payment for some annual leave which had been accrued.

[21]The claimant’s disputed evidence was that she was absent from work from 4 May 2020 on sick leave. Fit notes were provided to the Tribunal which recorded her as being absent on ill health grounds from 4 May to 1 June 2020; 1 June to 28 June 2020; and 28 June to 26 July 2020. The claimant's evidence was that the first respondent was sent all of these fit notes, but did not respond at all to the first two that were sent.

[22]On 19 May 2020 the claimant entered her first claim at the Employment Tribunal in respect of unpaid wages/annual leave, following ACAS Early Conciliation which had taken place between 3 March 2020 and 3 April 2020. After the payment on 5 February 2020, the claimant did not receive any further payments from the any of the respondents.

[23]On 17 June 2020 Mr Faryna sent the claimant an email. That email said: “This letter is to confirm to you that the shop in Abakus has been sold to Marlena Nowak-Doros on 16th March 2020 and as you are based at this location your employment has also transferred over to Marlena. Therefore, from now on please refer to Marlena in regards to your employment. I would like to apologise for such late notice about your transfer. This unintentional delay was caused by COVID-19 that significantly and negatively affected our work and coordination.”

[24]There was no dispute that this was the first that the claimant had been informed about the sale of the shop and/or any potential transfer.

[25]A P45 was provided by the first respondent to the claimant. That was dated 4 June 2020 and described the claimant's employment end date as being 30 April 2020. The evidence of Mr Faryna was that he left such things to his accountant and he did not understand why those were the dates recorded on the P45.

[26]On 22 June 2020 the claimant responded to Mr Faryna, raising objections to the email that she had received.

[27]The claimant entered her second claim on 22 September 2020 for unfair dismissal, unlawful deductions from wages, accrued but unpaid annual leave and for failure to consult in respect of a TUPE transfer. That followed ACAS Early Conciliation between 5 August and 5 September 2020. The claimant had endeavoured to enter this second claim in August 2020 but the claim had been rejected, subsequently being resubmitted in a way that was validly accepted. In her second claim form, the claimant recorded the date of termination of her employment as being 17 June 2020, which is the date upon which she had received the email from Mr Faryna recorded above. None of the parties argued that the date of termination of the claimant’s employment occurred after that date (or indeed that the claimant remained employed after that date). The sale of the shop

[28]The second respondent, Mrs Doros-Nowak, worked in the Abakus store for the first respondent from 21 August 2012. In November 2019 she visited Mr Faryna’s home and an agreement was reached with regard to the Abakus shop. In her evidence Mrs Doros-Nowak emphasised that it was a friendly deal between the two, that is the agreement was reached amicably and there was a notable lack of any formally recorded agreement between the parties. Mrs Doros-Nowak’s evidence was that the reason she took on the shop was because otherwise she would lose her job. Mr Faryna’s evidence was that Mrs Doros-Nowak did not want to work for an alternative potential new owner. Nothing whatsoever turns upon why Mrs DorosNowak took over the store.

[29]Mrs Doros-Nowak was cross examined at some length about what consideration and/or discussion took place regarding the claimant, as part of the agreement. Her evidence was that Mr Faryna told her at the meeting in November that because the claimant worked across sites she would not transfer (and that her employment would terminate). Mr Faryna’s evidence was that he expected Mrs Doros-Nowak to taken on responsibility for the claimant when she took over the store. There was no documentation which supported either account. What was clear from Mrs Doros-Nowak’s evidence was that (for whatever reason) she did not believe that the claimant’s employment was an issue for her when taking over the Abakus store, and she appears to have given very little thought to this when she in fact took over the running of the store.

[30]A payment was agreed and made by Mrs Doros-Nowak to Mr Faryna. Her evidence was that this was for the furniture, fridges, goods and stock that were already in the store. Both individuals made reference in their evidence to an invoice, but the Tribunal was not provided with any invoice or indeed any documentation that related to the price paid or what was transferred directly between the first respondent and the second/third respondent.

[31]Shortly prior to taking on the shop, the second respondent set up the third respondent company at Companies House on 12 March 2020. The company was set up to operate the shop and did so from 16 March 2020.

[32]On 13 March 2020 the second respondent signed an agreement with the landlord of the shop for a lease of the store commencing on 16 March 2020. The first respondent/Mr Faryna signed an agreement on 16 March 2020 that it/he relinquished their contract in relation to 295 Palatine Road (that is the Abakus store). That is, the first respondent vacated the lease, it did not transfer the lease or sell the lease to the second or third respondent.

[33]On the change at the shop, Mr Faryna retained the name Abakus. The first respondent ceased to be responsible for the running of the Abakus shop. The social media for Abakus was also retained by the first respondent. The Tecza store remained with the first respondent/Mr Faryna.

[34]On the day the second/third respondent took over the Abakus shop, the store opened under the name U Marlenki Limited and all invoices and bills were in that company’s name. Mrs Doros-Nowak’s evidence was also that the telephone number changed. The store did not close. Mrs Doros-Nowak explained that it did not close “because I am afraid of losing customers”. The evidence given was that there was no sale of goodwill as such. However the store continued to operate as a store and there was no evidence given of any material change in the way it operated in between the last day when it was operated by the first respondent and the first day when operated by the third respondent. It is therefore clear that customers would in practice have frequented the Abakus shop after the change, because they had been in the habit of frequenting it prior to the change (being consistent with Mrs DorosNowak’s reason for not closing the store for any period between owners).

[35]In the course of the hearing the Tribunal heard considerable evidence about some emails which were prepared on 12 and 18 May 2020. Mr Faryna’s evidence was that he had a verbal agreement with Mrs Doros-Nowak for her to send a formal letter to the claimant. There was no evidence to substantiate this and Mrs DorosNowak denied that was the case. Her evidence was that she was placed under pressure by Mr Faryna to send the proposed email included in the email from Mr Faryna as a draft. That informed the claimant that Mrs Doros-Nowak was the new owner of the premises, and it said that meant that the claimant was redundant. The proposed/draft emails were never sent to the claimant. They were draft versions provided by Mr Faryna or his partner to Mrs Doros-Nowak (Mr Faryna suggested that they were drafted due to Mrs Doros-Nowak needing assistance with them being drafted in English). Nothing material whatsoever turns upon the drafting or provenance of these emails, save for them providing evidence that in May 2020 there was some dispute between the first and second/third respondents about the claimant.

[36]It is of course relevant to record that very shortly after the second/third respondent took responsibility for the shop, the first lockdown as a result of the Covid-19 pandemic began to apply in the UK. The claimant's hours of work and where she worked

[37]There was a material dispute of evidence between the parties as to the work undertaken by the claimant when she worked, in the period between her return from maternity leave in 2014 and her suspension in January 2017. It was clear that the length of time between the period when the claimant had worked and the hearing, had impacted upon the witnesses’ recollection and the evidence was understandably more confused and less precise than it would have been (had the period of time in question been more recent).

[38]Prior to the first respondent/Mr Faryna opening the Tecza store, the claimant worked all of her time in the Abakus store.

[39]The claimant's evidence when she answered questions, was that she worked two days a week at the Abakus store and one or two days per week at the Tecza store. Her evidence was that she worked in both shops depending on need. That evidence was not entirely consistent with what was said in her witness statement where she said she worked usually two or three days a week, 16 hours per week. Save for what was said in the contract (that she would be required to work in different shops), the only document which the claimant provided which evidenced when the claimant worked at the Tecza store, was a single page showing extracts from eight diary weeks which the claimant said showed dates when she had recorded that she was required to work in the Tecza store which differed from the dates provided by Mr Faryna.

[40]Mr Faryna’s evidence was that, “I expected a degree of flexibility from my employees to enable them to cover at each shop if it was necessary.” His evidence was that the claimant was only required to work at the Tecza store to cover absence or sickness. His evidence that between January 2014 and December 2016 the claimant was only asked to work at the Tecza shop on a total of 16 days. When challenged on this, Mr Faryna made clear that his evidence was based upon 16 pages from his diary which had been photocopied and provided to the Tribunal. Those diary entries included the claimant's name, and on occasion a number of hours, but were difficult to read. They certainly fell a long way short of being the sort of clear and incontrovertible record of hours worked (and location worked) which it would be expected that an employer might retain (and indeed should do so for minimum wage record requirements). Mr Faryna’s evidence was that this was the document that he used to ensure that the correct wages were paid to employees. No documents were provided which showed Mr Faryna corresponding with his accountants or which evidenced him providing information to his accountants or payroll providers about where the claimant had worked or when. The Tribunal did not find Mr Faryna’s evidence to be reliable, based as it was on such poor records, and certainly did not find the records provided to be sufficient evidence to mean that the verbal evidence of the claimant should not be accepted.

[41]Mrs Doros-Nowak’s evidence was that she had worked five days a week at the Abakus store and the claimant worked the other two days, and this appeared not to be in dispute. There was also no dispute about her evidence that the claimant worked at both shops. However, what was in dispute was Mrs Doros-Nowak’s evidence that she believed that the amount the claimant worked was 50/50 between shops, and in the first year that the Tecza shop was opened she claimed it was more than 60% at Tecza. When challenged about this in cross examination, Mrs DorosNowak was very keen to emphasise that this was simply her opinion. She gave no evidence to explain how she knew the extent to which the claimant worked at the Tecza store, when she herself did not (or at least did not work there very much). Her evidence about the extent that the claimant worked at the Tecza store in the first year that it opened, was not corroborated by either the claimant or Mr Faryna. The Tribunal did not place a great deal of weight upon Mrs Doros-Nowak’s evidence, being as it was simply the opinion of a co-worker about the amount a colleague might have worked in another store (where she did not work herself).

[42]The absence of appropriate records about where and when the claimant worked during the period between her return from maternity leave in 2014 and her suspension in January 2017, was somewhat unsatisfactory and has made it difficult to determine the extent to which she worked at Tecza. As explained, the Tribunal has not placed a great deal of weight on Mrs Doros-Nowak’s evidence as it was simply her opinion and appeared to be supported by nothing more than vague assertion. The Tribunal accepts the claimant's evidence about her working week (subject to noting the inconsistency between what was said in her answers to what was said in her statement). There was no robust evidence provided to contradict what she said. The claimant's evidence was entirely consistent with the contract issued to her in 2013, the reason why that contract was issued, and Mr Faryna’s own evidence about the flexibility expected of staff. Mr Faryna’s evidence, being based as it was on the woefully inadequate diary entries, was not found to be reliable and was not sufficient to undermine the claimant's own evidence about the hours she worked.

[43]The claimant clearly worked two days per week in the Abakus store. Based upon the claimant’s statement in which she describes herself as working usually two to three days a week, the Tribunal finds that she frequently worked one day a week at the Tecza shop, but that she did not do so every week. On that basis, the Tribunal finds that the claimant worked approximately 70% of her time at Abakus and 30% at Tecza, during the period between her return from maternity leave in 2014 and her suspension in January 2017.

The Law

[44]Regulation 4(1) of the TUPE Regulations 2006 says: “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.”

[45]Regulation 2(1) of TUPE describes that “assigned” means assigned other than on a temporary basis.

[46]Regulation 3(1) of TUPE provides that the regulations apply to “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”.

[47]The requirement is that there should be a transfer of an “economic entity which retains its identity”. That is based upon the case of Spijkers v Gebroeders Benedik Abattoir

[1986] 2 CMLR 296

in which the court laid down certain specific matters which it was necessary to consider in each case, namely:(1) The type of undertaking or business concerned;

(2) Whether assets, tangible or intangible, were transferred;

(3) Whether employees were taken over;

(4) Whether customers were transferred; and

(5) The degree of similarity between the activities carried on before and after the transfer and the period, if any, for which those activities were suspended.

[48]All of the factors identified in Spijkers are single factors which should be taken into account in the overall assessment, but they should not be considered in isolation. The key UK guidance was provided in the Judgment of Cheesman v R Brewer Contracts Ltd

[2001] IRLR 144

in which the EAT highlighted the following:(1) The decisive criteria for establishing the existence of a transfer is whether the entity in question retains its identity, as indicated by the fact that its operation is actually continued or resumed;

(2) 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;

(3) Amongst the matters 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 similarly between the activities carried on before and after the transfer, and the period, if any, in which they are suspended;

(4) Account has to be taken of the type of the type of undertaking or business in issue and the importance of the criteria will necessarily vary according to the activity carried on;

(5) The absence of any contractual link between the transferor and transferee may be evidence that is relevant, but is certainly not conclusive as there is no direct need for any direct contractual relationship; and

(6) Where no employees are transferred, the reason why that is the case can be relevant.

[49]In their written documents provided to accompany their submissions both the first respondent’s representative and the second/third respondent’s representative placed emphasis upon the Spijkers factors.

[50]The key authority in relation to assignment to the undertaking or the part transferred is the decision in the case of Botzen v Rotterdamsche Droogdok Maatschappij BV

[1986] 2 CMLR 50

which identified the question as whether the individual is assigned to the undertaking or the parts transferred. Something Botzen and subsequent case law has emphasised is that this is not simply a test based upon the percentage of time which an employee spends in relation to the part transferred: the question is whether the employee is assigned to the undertaking transferred. Time spent in other parts of the business is not conclusive, as confirmed by Buchanan-Smith v Schleicher and Co International Ltd

[1996] ICR 613

[51]Duncan Web Offset (Maidstone) Ltd v Cooper

[1995] IRLR 633

confirmed that whether or not someone is assigned to the part transferred depends on all the facts of the case. Such factors include the following, although it was emphasised that this was not an exhaustive list:(1) The amount of time spent on one part of the business or other;

(2) The amount of value given to each part;

(3) The terms of the contract of employment showing what the employee could be required to do (although the terms of the contract are not conclusive – see for example Sunley Turriff Holdings Ltd v Thomson

[1995] IRLR 184

); and

(4) How cost was allocated between different parts of the business.

[52]Fairhurst Ward Abbotts Ltd v Botes Building Ltd

[2004] ICR 919

is authority for the fact that whether an employee absent on sick leave is employed in the part of the undertaking transferred is a factual matter to be determined by reference to where that person would be required to work if they were fit to do so. The Court of Appeal confirmed: “A person on sick leave, like a person on holiday, on study leave or maternity leave, remains a person employed in the undertaking, even though he is not actually at his place of work. The question is whether he was employed in the part transferred. That is a factual matter.”

[53]As a result of a submission made by the claimant’s representative that the relevant date which should be considered in relation to the transfer was 17 June 2020 when she was first informed about it, the Tribunal did seek the parties’ representations upon whether or not the transfer occurred (if one occurred) on the date the shop transferred or when the claimant found out about it. Both of the respondents’ representatives submitted that the transfer would have occurred (if it did) as a matter of fact on the date of transfer of the shop. The Tribunal has reminded itself of Gabriel v Peninsula Business Services Ltd

UKEAT/0190/11

which is authority for the fact that at common law the employment of an employee cannot be transferred from one employer to another without the employee’s assent. In that case TUPE was not invoked by the respondents. The Tribunal therefore accepts that the respondents’ representatives were quite right when they submitted that under TUPE whether a transfer occurred was a matter of fact. The lack of the claimant's knowledge about the transfer did not stop the transfer occurring on the date when the shop transferred (if that was a transfer).

[54]In the light of ISS Facility Services NV v Govaerts and McTear Contracts Ltd v Bennett

UKEATS/0023/19

the Tribunal did confirm with the parties whether any of them was contending that the claimant’s employment contract was split on the occasion of any transfer. None of the parties were contending that the claimant’s contract split: all of the parties agreed that the claimant's contract either transferred in its entirety or not at all.

[55]In relation to the timing of the claim, the Tribunal needed to consider the test of whether or not it was reasonably practicable for the claim to be brought in time, and, if not, whether the claim was brought within such further period as the Tribunal considered reasonable.

[56]The first step on this issue was determining when each claim or potential claim arose. The Tribunal did highlight to the parties that the date for this would vary depending upon the claim brought. The Tribunal applied: section 23 of the Employment Rights Act 1996 in respect of the deduction from wages claim; section 111 of the Employment Rights Act 1996 in relation to the unfair dismissal claim; and regulation 12(2) of the TUPE Regulations 2006 in relation to the claim for failure to inform and consult. None of the representatives demurred from the Tribunal’s suggestion that the relevant dates were therefore (following those claims): when the last in the series of payments was due; when the claimant was dismissed (or at least the effective date of termination); and when the transfer occurred.

[57]In relation to whether or not it was reasonably practicable for a claim to be entered in time, the Tribunal particularly took account of what was said at paragraph 12 of the Judgment of the Court of Appeal in Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

in which the essential points were highlighted as follows:(1) The test should be given a liberal interpretation in favour of the employee;

(2) Reasonably practicable is not to be taken as referring only to physical impracticability, but can be paraphrased as meaning reasonably feasible;

(3) If an employee misses the time limit because she is ignorant about the existence of a time limit, or mistaken about when it expires in her case, the question is whether that ignorance or mistake is reasonable; and

(4) The test of reasonable practicability is one of fact and not of law. Conclusion – Applying the Law to the Facts

[58]The first question which the Tribunal needed to consider was whether or not there was a transfer of an economic entity which retained its identity. That is, whether or not the TUPE Regulations could potentially have applied to transfer the claimant's employment.

[59]In applying the Spijkers and Cheesman factors, the Tribunal’s view is that the important factors pointing towards the transfer were the following:• The undertaking is a shop and/or operation of that shop;

• The shop continued to operate following the potential transfer date, or at least resumed the next day;

• The third respondent paid for and bought from the first respondent all furniture, fridges, goods and stock at the shop, that is all the tangible assets in the shop transferred;

• By its nature, the customers would have continued to visit the shop, albeit as the name of the shop changed the goodwill in terms of the operator and website was not transferred, nonetheless the fact that it was a shop means that the following day the same customers would have attended; and

• In terms of the similarity of the activities carried on before and after the transfer, they were exactly the same. Those activities were not suspended at all.

[60]The factors which were the key factors which suggested that there may not have been a transfer were:• No other employees were taken over, although the importance of this factor was limited by the fact that the two employees potentially involved were the claimant and the person who took over the lease of the shop;

• The operator of the shop differed, the social media presence did not transfer, and the name itself changed; and

• There was not a direct transaction between the first and third respondent in respect of the premises: the first respondent vacated the lease and the third respondent entered into a new lease with a third party.

[61]The reason why the claimant was not transferred was not considered to be an important factor in this case. In any event that reason was uncertain and disputed by the parties. The views of the parties also did not provide much assistance in determining whether there was a transfer of an economic entity which retained its identity.

[62]Weighing the factors above, the Tribunal had absolutely no hesitation in finding that there was an economic entity which retained its identity on the date of the transfer of the shop. Where a shop continued to operate in exactly the same way both before and after the transfer, without any suspension, and indeed with all tangible assets located within the shop having been passed between the organisations, this indicated that this was a transfer of an economic entity.

[63]The second question, and one which the Tribunal found considerably more difficult to determine, was whether or not the claimant was assigned to the part of the business which transferred.

[64]Applying the law outlined above, the factors which suggest that the claimant was assigned to the Abakus store include:• When she was first employed by the first respondent she worked entirely at the Abakus store; and

• She worked at the Abakus store two days per week in the period prior to the lengthy absences, and that two days was the majority of her working time which has been found to be approximately 70% of that time.

[65]The factors which point against the claimant being assigned to the Abakus store are the following:• The fact that the claimant was required to work at the Tecza store relatively frequently (being approximately 30% of her working time prior to the absences);

• The claimant’s perception that she was not assigned to the Abakus store only, but worked at both stores;

• The terms of the claimant's employment contract which clearly stipulated that she may be required to work at each store;

• The fact that the reason why that new contract was introduced was in order to provide Mr Faryna/the first respondent the flexibility to require the claimant to work at other stores – that is in practice Mr Faryna’s evidence was that in 2013 he had actively changed the claimant's contractual position to require her not to be assigned solely to the Abakus store; and

• The emphasis placed by the case law on time not being the decisive factor, the question being to determine whether the claimant was assigned to the part transferred.

[66]In terms of the lengthy absence, that made the evidence less clear about where the claimant was assigned, but the fact that the claimant had been absent for lengthy periods since early 2017 did not have any impact upon whether or not she was assigned to Abakus or not. The Tribunal also placed little weight on the actions and discussions between the respondents about whether or not the claimant was assigned.

[67]In considering the above factors the Tribunal has given particular weight to Mr Faryna’s evidence about the change in the claimant's contract and the reason why the second contract was introduced and signed. Whilst that factor alone cannot be decisive, it was important that the contract was clear in recording that the claimant's status as manager was to work at both shops and not simply limited to the Abakus store. Whilst the claimant worked the majority of her time at the Abakus store, the Tribunal has found that she also worked a significant amount of time at the Tecza store. On that basis and weighing all the relevant factors described, the Tribunal finds that the claimant was not assigned to the Abakus store and therefore (as that was the economic entity/undertaking which transferred) her employment did not transfer.

[68]As the parties did not contend that the claimant's contract split, it is not necessary for the Tribunal to determine whether it might have done so. However, even had the Tribunal needed to consider this, it would not have concluded that the work attributable to each store for the claimant was clearly separate from the work for another store and identifiable as such, which is a requirement for such a split contract to occur on a transfer (see the Judgment in McTear Contracts). Whether any of the claimant's claims were presented out of time, and if so whether an extension of time should be granted such that the claim can proceed

[69]With regard to key dates for the second claim, the Tribunal finds that:(1) The date of the last alleged deduction from wages would have been the payment date following 17 June 2020, albeit the Tribunal was given no evidence about what that date would have been;

(2) The date of dismissal was 17 June 2020 based upon the email sent to the claimant and what the claimant herself understood the position to be as recorded on her second Tribunal claim form; and

(3) The date of transfer (had there been a transfer) would have been 16 March 2020.

[70]The Tribunal does not accept the submission made by the second/third respondent’s representative that the claimant was dismissed when she received the payment at the end of February 2020. The payment of a significant amount of accrued annual leave did not in any way indicate that employment had been terminated, nor did the parties to the contract understand that to be the case. That was particularly evidenced by the fact that the claimant continued to provide fit notes following the payment date. There was good reason for the payment to be made and it cannot be seen as an implied termination. The Tribunal does find the complete absence of correspondence with the claimant about the transfer of the Abakus shop and what she should do thereafter to be both surprising and regrettable. It is trite law that the claimant's employment cannot be terminated without her being informed. The first date upon which the claimant was informed that her employment terminated was 17 June 2020, and that is found to be the termination date.

[71]On the basis that the termination date was 17 June 2020 and that ACAS early conciliation for the second claim commenced on 6 August 2020 and carried on to 5 September 2020, the claim for unfair dismissal entered on 22 September 2020 was entered within the required period (when the ACAS early conciliation extension is taken into account). Accordingly, the Employment Tribunal does have jurisdiction to consider the unfair dismissal claim.

[72]The same position must apply to the claims for unlawful deduction from wages and/or payment for accrued annual leave, as payment would have been due on or after 17 June 2020. Accordingly, those claims as included in the second claim form were entered in time. In reaching this decision, the Tribunal has not determined whether each and every alleged deduction contended has been brought in time; it has simply concluded that the last of the alleged deductions appears to have been brought in time. The first respondent will still be able to raise arguments about the time of any single alleged deduction or deductions, particularly based upon annual leave years, if such arguments exist, at the final hearing.

[73]As a result of the Tribunal’s finding that the claimant was not transferred under TUPE, the claimant cannot have a claim for alleged failure to inform and consult on a TUPE transfer and/or for a protective award in any event. Nonetheless, even if the claimant were to be able to pursue such a claim, the Tribunal finds that the claim was not brought within the time required. The date of the transfer was 16 March 2020. A claim should have been entered, or ACAS early conciliation commenced, by 15 June 2020. Accordingly, as such a claim was not entered and/or ACAS early conciliation commenced in respect of that issue by that date, the claim is out of time. The Tribunal accepts that it was not reasonably practicable for the claimant to enter a claim in relation to failure to consult in the primary time limit because she did not know about the transfer until 17 June 2020. However, the final part of the relevant test is whether or not the claim was entered within such further period as the Tribunal considers reasonable. As the claimant knew about the transfer on 17 June 2020, but did not enter a claim until 22 September 2020, being three months later, the claim was not entered within such further period as the Tribunal considers reasonable. Time limits are important in Tribunal cases and the relevant time limit is three months. Delaying for three months after becoming aware of the existence of such a claim (and even allowing that some of this period was ACAS Early Conciliation) was not entering a claim in such further period as was reasonable.

Summary

[74]As a result of the decisions reached, the second and third respondents are both dismissed from the proceedings as the claimant did not TUPE transfer to their employment. The second respondent would have been dismissed in any event based on the agreement of the claimant’s representative at the start of the hearing that the transfer would not have been to her personally.

[75]The claimant’s claim for a protective award for failing to consult in relation to a transfer is also dismissed, both because there was no transfer of her employment which means there cannot be such a claim, and in any event the claim was not entered within the time required.

[76]The claimant's claims for unfair dismissal, unlawful deduction from wages and in respect of annual leave against the first respondent, arising from or relating to her dismissal on 18 June 2020, can proceed to hearing, and those issues will need to be determined at a final hearing.

[77]As was agreed with the parties, that hearing will be listed for one day to include remedy, following dates to avoid being sought. Employment Judge Phil Allen 5 July 2021