Communication Workers Union (CWU) v British Telecom Ltd and The Commissioners for HM Revenue and Customs: 3205811/2022
JUDGMENT
[1]The First Respondent and Second Respondent have failed to comply with Regulation 13 Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) (the duty to inform) the Claimant’s representatives and the Claimant’s complaint under Regulation 15 TUPE is well founded.[2]The First Respondent is ordered to pay 1 week’s pay to each affected employee (as defined in this judgment), pursuant to Regulation 15(8) Transfer of Undertakings (Protection of Employment) Regulations 2006.[3]The Second Respondent is ordered to pay 7 weeks’ pay to each affected employee (as defined in this judgment), pursuant to Regulation 15(7) Transfer of Undertakings (Protection of Employment) Regulations 2006.REASONS
[1]The Claimant is an independent trade union which is recognised by the First Respondent and the Second Respondent. Employees of the First Respondent (the transferor) were in scope to transfer under TUPE to the Second Respondent (the transferee) following the expiry of a service contract as the Second Respondent was taking the affected service back inhouse.[2]On the 1st July 2022, the First Respondent transferred part of its Telephony Services undertaking, to the Second Respondent (“the Transfer”). Seven of the Claimant’s members were “in scope” to transfer, namely: Pardeep Khaira, Jared Mason, Tracy Birch, Gary Pickett, Janine Bates, Joanne Freer-Ash and Mark Peacock (“the affected employees”) and have been affected by measures taken in connection with the transfer by the Second Respondent post-transfer.[3]The Claimant presented an ET1 claim on 9th December 2022 naming both Respondents. This alleged there had been a failure to consult and inform in accordance with Regulation 13 TUPE and sought 13 weeks gross pay per affected employee.The Hearing
[4]The case was heard by an Employment Tribunal siting remotely via video link.[5]At the outset of the final hearing, we discussed the List of Issues with the representatives and agreed the timetable and order of evidence. We discussed whether any witness needed adjustments to be able to fairly participate in the hearing; no adjustments were identified, but I explained we would take regular rest breaks and confirmed that any witness or party could ask for a rest break at any point during the hearing.[6]Prior to starting to hear evidence, the Tribunal read the bundle of documents of 1246 pages and witnesses’ statements.[7]We heard evidence on oath as follows: Day 17.1 Mr Eldred, National Officer of the Claimant and formerly an employee of the First Respondent for 43 years. Day 27.2 Mr Eldred7.3 Ms J Taylor, HR Practice Consultant with the First Respondent7.4 Ms K Hardicre, TUPE Specialist Lead with the Second Respondent7.5 Mr M Reed, Head of HR with the Second Respondent[8]All witnesses gave evidence on oath. In relation to each witness, the procedure adopted was the same: the Tribunal had read each witness’s statement, there was opportunity for supplemental questions before questions from the other sides, questions from the Tribunal and any re-examination.[9]Each representative prepared written submissions which were exchanged by 9.30 on the third day and supplemented with oral submissions. The Tribunal commenced their discussion during the afternoon of the third day and reconvened to complete their discussion on the fourth day.[10]The employment judge sincerely apologises to the parties, representatives and individuals involved in this case for the delay in providing this judgment. Whilst it is a poor excuse this has been an exceptionally busy and difficult period for the judge.The Issues
[11]By closing submissions, the List of Issues to be determined (as set out in the updated list of issues) were: 1. Did either of the Second Respondent’s proposals:a. that amounts awarded under pay progression be inclusive of any “pay review” awarded under the [pay review] provisions and not in addition, with the effect that any collectively negotiated pay award would not be awarded in addition to the 5% pay progression to which Joanne Freer Ash was contractually entitled; and/orb. to award any collectively agreed pay increase in respect of ‘Salary Above Maximum’ as an unconsolidated lump sum award rather than as a pay increase (‘the SAM policy’) amount to:1.1 a legal, social, and/or economic implication of the transfer pursuant to regulation 13(2)(b) TUPE 2006 and/or1.2 a measure which the First Respondent envisaged that the Second Respondent would take in relation to any affected employees, pursuant to regulation 13(2)(d) TUPE 2006? 2. If so, did the First Respondent inform the Claimant of the Second Respondent’s proposals at 1(a) and (b) above in accordance with regulation 13(2) TUPE 2006? The Claimant’s case is that if the answer to paragraphs 1.1 and 1.2 is a yes’, then a duty did so arise. 3. If so, by what date did it arise? 4. Did the First Respondent comply with any such duty? 5. In so far as the First Respondent failed to comply with any duty arising under regulation 13(2)(d), was this because the Second Respondent had failed to provide it with such information as would enable it to perform such obligations, in breach of regulation 13(4) TUPE 2006? 6. If so, were there any special circumstances which rendered it not reasonably practicable for the Second Respondent to perform a duty imposed on it by regulation 13(4), namely:8.1 The contention that the mapping process was not completed until the beginning of June 2022 – the Claimant’s assertion is that the mapping process was completed on 25 May 2022;8.2 The contention that the issue did not arise until queries raised by the transferring employees in meetings of 14 and 15 June 2022; The Claimant’s position in this regard is that the Reg 13(2)(b) and (d) obligations to inform and consult arose at the first stage of the information exchange between Respondents on or about 25 April 2022, alternatively when the Pay Protection Policy was raised by the Claimant on 10 May 2022, but at the latest upon completion of mapping, the economic and pay implications of Second Respondent’s SAM policy/arrangement on the affected employees being self-evident. and if so, whether the Second Respondent took all such steps towards performing that duty as were reasonable practicable in the circumstances. Remedy 7. In the event that the claim succeeds, what description of affected employees should be specified in an award? 8. What compensation would be appropriate to be ordered to be paid to such description of affected employees by:8.3 the transferee, pursuant to regulation 15(7);8.4 the transferor, pursuant to regulation 15(8)? Findings of FactBackground
[12]The following facts are agreed:12.1 There was a relevant transfer of the affected employees’ employment from the First Respondent to the Second Respondent on 1 July 2022, pursuant to regulation 3(1)(a) TUPE 2006. (“the Transfer”);12.2 Seven employees, Jared Mason, Tracy Birch, Gary Pickett, Janine Bates, Joanne Freer-Ash & Mark Peacock were all “affected employees” pursuant to regulation 13(1) TUPE 2006 at the date of the Transfer;12.3 The Claimant was the “appropriate representative” of the affected employees for the purpose of regulation 13(2) TUPE 2006;[13]It is also agreed between the Claimant and the First Respondent that it is First Respondent’s practice that if a pay increase under the annual pay review was agreed between the Claimant and the First Respondent, the First Respondent’s practice was to award a pay increase to all eligible employees regardless of their position on their relevant pay spine. The Claimant asserts that this amounted to a policy (“the Pay Policy”) and/or an implied term of the contract.[14]The Tribunal went on to find the following further facts:[15]By February 2022, the First Respondent appreciated the Second Respondent was terminating the “HMRC Voice contract” on 30th June 2022 and taking this provision in house. On 17th February 2022 the First Respondent gave a presentation to its affected employees.[16]On 8 March 2022, the First Respondent’s Ms Taylor emailed the Claimant’s Mr Eldred explaining there was likely to be a TUPE transfer situation.[17]On 15 March 2022, the First Respondent provided Mr Eldred with a short information pack for transferring employees.[18]On 16 March 2022, there was a short informal meeting between Mr Eldred and Ms Taylor during which Ms Taylor confirmed there would be a transfer of a handful of employees to the Second Respondent.[19]On 24th March 2022, Ms Taylor sent employee data for the affected employees to the Second Respondent.[20]On 1st April 2022, the Second Respondent asked Ms Taylor questions based on the employee data that had been provided.[21]On 5th April 2022, the Second Respondent requested a copy of the First Respondent’s terms and conditions, and the First Respondent provided a summary of these.[22]On 26th April 2022, the Transfer was formally announced. On 27th April 2022, a mapping document was sent by the First Respondent to the Second Respondent which mapped the terms and conditions in the Second Respondent’s employee contracts with terms and conditions in the First Respondent’s contracts.[23]On 6th May 2022 the Second Respondent sent a provisional measures letter to Ms Taylor and the first collective consultation meeting took place between representatives from the First Respondent, the Second Respondent and the Claimant.[24]On 9th May 2022 the Second Respondent sent Ms Taylor an amended measures letter. The second collective consultation meeting[25]On 10th May 2022 a second collective consultation meeting took place between both respondents and the claimant. During this meeting, the Claimant’s Mr Eldred raised the First Respondent’s Pay Policy. His evidence that he remembered raising the Pay Policy during this meeting is supported by an action point from that meeting that Mr Eldred was going to provide the Second Respondent with the Pay Policy. It is also supported by Ms Taylor’s recollection of that meeting. We accept during the second collective consultation meeting Mr Eldred raised the Pay Policy and the Second Respondent’s Ms Hardicre reassured Mr Eldred that this was not an issue saying “We have the same policy”. Whilst Ms Hardicre denies making this comment, we did not find her evidence very credible on this point, given her account is contradicted by the evidence of Mr Eldred, Ms Hardicre and the contemporaneous action point. We accept Ms Hardicre did give reassurances in relation to the First Respondent’s Pay Policy in the second consultation meeting, but her comment was omitted from the minutes of that meeting.[26]Mr Eldred complied with this action point and sent the First Respondent’s Pay Policy to the Second Respondent by email of 25th May 2022. The third collective consultation meeting[27]A third collective consultation meeting took place between the respondents and claimant on 25th May 2022. We note during this meeting Mr Eldred sought clarification as to how individuals would be treated if their role was mapped to a Second Respondent’s grade with a higher salary band. Ms Cherry, the Second Respondent’s TUPE adviser explained the individual would move to the minimum of the new band.[28]Ms Taylor shared that the affected employees had posed a question regarding how they would be treated with regards to future salary increases should their BT salaries be above the maximum of the HMRC grade to which they were mapped.[29]Ms Hardicre confirmed the individuals would be included in the annual HMRC Pay Review Cycle and the colleagues would receive the same increase as their HMRC colleagues. For clarification she added there was no performance related element to any annual increase, nor was there any salary progression in recognition of service, capability, or skill development in HMRC. The annual salary review was in effect whatever was awarded by The Cabinet Office. The tribunal accept Ms Hardicre assured the Claimant and First Respondent that if an affected employee’s current pay was above the Second Respondent’s level for a mapped role the employee would retain their pay (at the rate paid by the First Respondent) and their pay would increase in line with whatever the Cabinet Office awarded staff in the annual pay review.[30]The tribunal note Ms Taylor updated the affected employees by email of 25th May 2022, where she reports: “I raised the question on your behalf around what happens to future salary increases if you are placed on to a grade in HMRC that means you are the top of, or above the salary band. Were this to happen, HRMC stated that you would still receive the standard organisation-wide % increase.…”[31]The Tribunal accept that in her email Ms Taylor had accurately relayed information that she had been provided by Ms Hardicre. The Claimant and First Respondent had been assured none of the affected employees would suffer a detriment in pay or entitlement to collectively agreed pay rises. The Second Respondent’s Salary Above Maximum (“SAM”) policy[32]Unfortunately, the information provided by Ms Hardicre in the second and third collective consultation meetings was inaccurate. The impact of the Second Respondent’s SAM policy meant affected employees were unlikely to receive salary increases when the Second Respondent had an organisation-wide pay increase.[33]The tribunal note that whilst the SAM policy has been applied historically and is an established civil service policy at HMRC, there was no written SAM policy until December 2022.[34]The effect of the SAM policy is that if a person was mapped to a HMRC grade that resulted in their current BT salary being above the maximum range for that HMRC grade, the difference in pay would be paid as an allowance rather than being part of their basic salary. The allowance is pensionable but that employee would not receive any pay increase whilst they were in receipt of that allowance. If an employee’s annual salary with BT was £50,000 but the top HMRC salary for the grade they had been mapped to was £40,000 the difference of £10,000 would be paid as an allowance. Any annual pay rise would increase the basic salary and reduce the amount of the allowance - until the maximum range for that grade exceeded £50,000 the employee would not experience any pay rise in practice. For instance, if there was a 10% pay rise, the employee’s basic salary would be increased to £44,000 and allowance reduced to £6,000 meaning the employee would continue to receive £50,000 gross per annum. This meant in practice affected employees were likely to have to wait a number of years before they would experience a pay rise.[35]Ms Hardicre accepts she gave inaccurate information in relation to the affected employees’ prospects of receiving future pay rises. Her explanation for this inaccuracy was that she had only recently started working with the Second Respondent and she had assumed this was how the SAM policy worked as this had been the case in other public sector organisations; Ms Hardicre didn’t make enquiries about how the Second Respondent’s SAM policy operated until later in the TUPE consultation process.[36]An internal email confirms the mapping exercise was completed within HMRC by 25th May 2022. We note by 30th May 2022 the impact of the SAM policy on the affected employees was being discussed internally by personnel within the Second Respondent. By 30th May 2022 personnel within the Second Respondent knew that affected employees’ salaries put them at the top of or above the maximum grade range for their HMRC grade and knew the impact of the SAM policy. However this was not raised with the First Respondent until Ms Hardicre’s telephone conversation with Ms Taylor on 22nd June 2022 which had been prompted by the First Respondent’s Ms Taylor raising a query with the Second Respondent on 16th June 2022.[37]A fourth and final collective consultation meeting took place on 7th June 2022 between the respondents and claimant.[38]The consultation period concluded on 10th June 2022. The impact of the SAM policy on affected employees had not been discussed during collective consultation, nor had the Second Respondent provided the First Respondent or Claimant with any documents relating to the impact of the SAM policy.[39]On 13th June 2022, the Second Respondent started sending draft individual measures statements to each of the affected employees and started individual meetings with affected employees.[40]Ms Taylor received a query from one of the affected employees about her future salary increases, as information provided by the Second Respondent during individual meetings contradicted the assurances that had previously been given by the Second Respondent (and passed on to affected employees by the First Respondent). Ms Taylor raised this concern with the Second Respondent on 16th June 2022.[41]On 20th June 22 the Second Respondent notes affected employees are querying the impact the SAM policy would have on their future pay increases, which leads to the Second Respondent sending an email to individual transferring employees with information about SAM on 21st June 2022. Meeting on 22nd June 2022[42]On 22nd June, the Second Respondent held a meeting with the First Respondent and the affected transferring employees to discuss the implications of the SAM policy. The Claimant was not invited to this meeting. During this meeting the Second Respondent accurately explained the SAM policy for the first time and the affected employees unanimously stated they felt they were “losing out as a result of TUPEing over to HMRC”. It was also confirmed the operation of the SAM policy had not been discussed with the Claimant during consultation.[43]The affected employees spoke to the Claimant’s Mr Eldred and on 22nd June 2022, Mr Eldred emailed the First Respondent, expressing his concerns on behalf of the transferring employees and this was forwarded to the Second Respondent the same day. Mr Eldred noted his members were “angry” and noted “You will recall we have been advised that people will be mapped to the HMRC grading system and that the grades have very similar characteristics and pay levels as BT’s. In fact our members were advised by HMRC yesterday that some of them have been placed on a grade with a pay level £8K below their current pay max and they will not receive any pay rises until HMRC pay has caught up. As you will be aware, pay is contractual as is the pay and pension protection agreement which we have supplied to HMRC. What our members have been told breaches contract law, the TUPE regulations and is the complete opposite of what we have been advised on the calls.”[44]In her email forwarding Mr Eldred’s email to the Second Respondent, Ms Taylor noted “To reiterate our discussion this morning, BT’s position on this is clear. The in-scope colleagues should not suffer detriment in respect of their existing terms and conditions as a result of the transfer to HMRC, which includes salary. If a portion of their salary is going to be exempt from future pay increases this is a less favourable term than they currently enjoy, as their full base salary is subject to any pay awards at BT currently. I am struggling to understand how HMRC could argue anything different to this.”[45]There was a further meeting on 24th June 2022 between the Second Respondent and transferring employees, at which the Second Respondent explained the SAM policy again.[46]Crucially, neither the First Respondent, nor the Second Respondent arranged any further consultation with the Claimant or provided the Claimant with information about the SAM policy – the last consultation meeting with the Claimant was 7th June 2022. There was no consultation with the Claimant about the impact of the Second Respondent’s SAM policy. The Claimant only became aware of the SAM policy because the affected employees complained to Mr Eldred. The Second Respondent did not respond to Mr Eldred’s email of 22nd June 2022. The Second Respondent did not provide Mr Eldred or the Claimant with a copy of the SAM policy or any explanation of how the SAM policy would actually impact on the affected employees.[47]On 28th June 2022, the final measures statements were issued to individual affected employees. This included an additional sentence “As from 1st June 2023 any future HMRC pay awards made by the Cabinet Office would be dealt with in line with the attached illustration”, with the illustration applying the Second Respondent’s SAM policy. This was the first time the measures statements had included any reference to the Second Respondent’s SAM policy.[48]The First Respondent’s Pay Policy had meant that for 40+ years (possibly with the exception of 1 year), every BT employee had received a collectively negotiated pay award, regardless of where they were on the pay spine. By 28th June 2022, all witnesses (from the Second Respondent as well as those from the First Respondent) accepted that the interplay between First Respondent’s practice of awarding any collectively agreed pay award to all eligible employees (regardless of their position on the pay spine) and Second Respondent’s SAM policy amounted to a measure pursuant to 13(2)(d) TUPE 2006. The Second Respondent rushed to issue updated measure statements on 28th June 2022, two days before the TUPE transfer.[49]On 1st July 2022, the affected employees transferred to the Second Respondent. Ms Freer-Ash’s situation[50]At the 7th June 2022 collective consultation meeting, Ms Taylor had made the Second Respondent aware that Ms Freer-Ash would be entitled to a 5% pay progression that had been awarded to the First Respondent’s New Grid Framework employees and explained such employees were entitled to receive a 5% salary increase each October until they reached the top of their salary range.[51]Ms Freer-Ash’s contract with the First Respondent was on the Workforce 2020 terms with some Hybrid New Grid terms also applying which meant she was contractually entitled to a 5% incremental increase on her whole salary subject to satisfactory performance.[52]Ms Freer-Ash’s measures statement (provided on 28th June 2022) confirmed that in the years that she continued to receive a pay progression increase the Second Respondent would not pay her any collectively agreed pay award, which meant she would be deprived any cost of living increase other employees would enjoy and which she would have received if she had remained employed by the First Respondent. The Claimant was not informed or consulted at all about this change to Ms Freer-Ash’s entitlement to collectively negotiated pay awards.The Law
[53]Regulation 13 of Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) imposes the following duty on the transferor (the First Respondent): “(2) Long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives of-(a) The fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for it;(b) The legal economic and social implications of the transfer for any affected employees;(c) The measures which he envisages he will, in connection with the transfer, take in relation to any affected employees, or, if he envisages that no measures will be so taken, that fact; and(d) If the employer is the transferor, the measures, in connection with the transfer, which he envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact.”[54]Regulation 13(4) identifies the duty of the transferee (the Second Respondent) as follows: “The transferee shall give the transferor such information at such a time as will enable the transferor to perform the duty imposed on him by virtue of paragraph (2)(d).”[55]Regulation 13(6) provides: “an employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the relevant transfer, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures.”[56]Regulation 13(9) provides: “If in any case there are special circumstances which render it not reasonably practicable for an employer to perform a duty imposed on him by any of paragraphs (2) to (7), he shall take all such steps towards performing that duty as are reasonably practicable in the circumstances.”[57]Regulation 15 provides: “(1) Where an employer has failed to comply with a requirement of regulation 13…, a complaint may be presented to an employment tribunal on that ground … (2) If on a complaint under paragraph (1) a question arises as to whether or not it was reasonably practicable for an employer to perform a particular duty or as to what steps he took towards performing it, it shall be for him to show-(a) that there were special circumstances which rendered it not reasonably practicable for him to perform the duty; and(b) that he took all such steps towards its performance as were reasonably practicable in those circumstances. … (5) On a complaint against a transferor that he had failed to perform the duty imposed on him by virtue of regulation 13(2)(d), or, so far as relating thereto, regulation 13(9), he may not show that it was not reasonably practicable for him to perform the duty in question for the reason that the transferee had failed to give him the requisite information at the requisite time in accordance with regulation 13(4) unless he gives the transferee notice of his intention to show that fact;… … (7) Where the tribunal finds a complaint under paragraph (1) well-founded it shall make a declaration to that effect and may order the transferee to pay appropriate compensation to such descriptions of affected employees as may be specified in the award. (8) where the tribunal finds a complaint against a transferor under paragraph (1) well founded it shall make a declaration to that effect and may- (a) order the transferor, subject to paragraph (9), to pay appropriate compensation to such descriptions of affected employees as may be specified in the award; or (b) if the complaint is that the transferor did not perform the duty mentioned in paragraph (5) and the transferor (after giving such notice) shows the facts so mentioned, order the transferee to pay appropriate compensation to such descriptions of affected employees as may be specified in the award. (9) The transferee shall be jointly and severally liable with the transferor in respect of compensation payable under subparagraph 8(a)…”[58]Regulation 16(3) defines appropriate compensation as “such sum not exceeding thirteen weeks’ pay for the employee in question as the tribunal considers just and equitable having regard to the seriousness of the failure of the employer to comply with his duty”.[59]Millett J explained in Institution of Professional Civil Servants v Ministry of Defence [1987] 3 CMLR 35, that the transferor / transferee are not to be criticised if, for reasons, beyond their control, particular measures are not envisaged until shortly before the transfer, when there is no time for consultation to take place. A ‘measure’ includes an action, step or arrangement, but does not include mere hopes or possibilities. There must be some definite plan or proposal in place which it has in mind to implement. ‘Envisages’ means visualises or foresees.[60]Article 7.1 of EU Council Directive 2001/23/EC explains information should be given “in good time, and in any event before the employees are directly affected by the transfer as regards their conditions of work and employment”.[61]In Cable Realisations v GMB Northern UKEAT/0538/08/DA, the EAT held that where information was provided on 15th August and the transfer took place on 3rd September, the information was not provided in sufficient time given that there was an annual shut down for factory between 17 and 31 August. What was necessary was sufficient time during which union representatives were available to speak with management and also communicate with members.[62]When providing information about ‘measures’, a transferee is obliged to provide information in relation to measures he does in fact envisage (rather than measures he ought to envisage)[63]Communication Workers Union v Royal Mail Group Ltd [2009] ICR 357 explained when providing information, the employer/transferee is obliged to state what they genuinely think the legal implications of the transfer are, without warranting the accuracy of this information.[64]In Institution of Professional Civil Servants v Ministry of Defence [1987] 3 CMLR 35, Millett J said that consultation must take place not ‘As soon as measures are envisaged and in any event long enough before the transfer’ but rather ‘As soon as measures are envisaged and if possible long enough before the transfer’.[65]In Sweetin v Coral Racing 2006 IRLR 252, the EAT explained the award is intended to be punitive and should reflect the nature and extent of the employer’s default. Conclusions Were the Second Respondent’s proposals a measure which the First Respondent envisaged the Second Respondent would take in relation to affected employees pursuant to Regulation 13 (2) (b) TUPE 2006?Conclusions
[66]The Tribunal accepted that both of the Second Respondent’s proposals, ie66.1 the proposal in relation to Ms Freer-Ash’s pay progression (that amounts awarded under pay progression be inclusive of any “pay review” awarded under the [pay review] provisions and not in addition, with the effect that any collectively negotiated pay award would not be awarded in addition to the 5% pay progression to which Joanne Freer Ash was contractually entitled); and66.2 the proposal to award any collectively agreed pay increase in accordance with the ‘Salary Above Maximum’ policy rather than as an actual pay increase amounted to measures which the First Respondent envisaged that the Second Respondent would take in relation to the affected employees, pursuant to regulation 13(2)(d) TUPE 2006.[67]We accepted that on 22nd June 2022, the First Respondent became aware that the manner in which the Second Respondent was proposing to operate the SAM policy / entitlement to collectively negotiated pay increases was entirely different from that previously stated by Ms Hardicre, such that the First Respondent envisaged it amounted to a measure, in that the Second Respondent would be departing from the First Respondent’s long-standing policy and practice that if a pay increase under the annual pay review was agreed between the Claimant and the First Respondent, the First Respondent’s practice was to award a pay increase to all eligible employees regardless of their position on their relevant pay spine.[68]It was actually two slightly different measures, as the detrimental impact on Ms Freer-Ash was different from the detrimental impact on the other affected employees. Duty to inform the Claimant?[69]We accepted that on 22nd June 2022 a duty arose for the First Respondent to inform the Claimant of these two additional measures (per Regulation 13(2) TUPE 2006), and the First Respondent failed to comply with this duty. The Claimant was not provided with written information about either measure – they ought to have been provided with a written explanation of the operation of the SAM policy and Ms Hardicre’s entitlement to collectively negotiated pay increases, but they were not. In so far as the First Respondent failed to comply with any duty arising under regulation 13(2)(d), was this because the Second Respondent had failed to provide it with such information as would enable it to perform such obligations, in breach of regulation 13(4) TUPE 2006?[70]We accepted that by the end of May 2022, having completed the mapping exercise and being aware of the impact of the Second Respondent’s SAM policy, the Second Respondent ought to have envisaged the measure in relation to the application of the SAM policy and by 7th June 2022 it ought to have envisaged the measure in relation to the change in Ms Freer-Ash’s entitlement to collectively agreed pay awards.[71]However, we note the legal test is not when should the Second Respondent have envisaged the measures – it is when did they envisage the measures. From the contemporaneous documents we find the Second Respondent had envisaged the measures by 20th June 2022 at the very latest, which was 9 days before the TUPE transfer.[72]The Second Respondent submitted it did not have sufficient information about the First Respondent’s Pay Policy to envisage these measures, but this Tribunal has accepted the Claimant raised this pay policy and Mr Eldred’s concerns that this amounted to a contractual entitlement in two of the collective consultation meetings and had provided the policy to the Second Respondent by 25th May 2022.[73]We are satisfied that the Second Respondent did fail to provide the First Respondent with written information about the operation of the SAM policy and Ms Freer-Ash’s entitlement to collectively agreed pay increases, such as would enable the First Respondent to fulfil their TUPE obligations. The Second Respondent’s failure to provide this information amounted to a breach of regulation 13(4) TUPE 2006 and was the primary reason the First Respondent failed to fulfil their TUPE obligations.[74]The First Respondent should have provided whatever information they were able to glean about Second Respondent’s SAM policy to the Claimant formally in writing on or around 22nd June 2022 – this was a very minor breach that is not attributable to the Second Respondent’s failure. Were there any special circumstances which rendered it not reasonably practicable for the Second Respondent to perform a duty imposed on it by regulation 13(4)?[75]The Second Respondent has asserted the following special circumstances: “The mapping process was not completed until the beginning of June 2022”[76]From contemporaneous documents, the tribunal found the mapping process had been completed by 25 May 2022, which gave the Second Respondent over a month to consider the impact of the established SAM policy and provide this written information to the First Respondent. “The issue did not arise until queries raised by the transferring employees in meeting of 14 and 15 June 2022”[77]Contemporaneous documents of the Second Respondent’s internal discussions demonstrate the Second Respondent was discussing the implication of the SAM policy by the end of May 2022 and had completed mapping before this date. The tribunal found it was reasonably practicable for the Second Respondent to identify this issue at that date. Mr Eldred had repeatedly raised the First Respondent’s pay policy in meetings with the Second Respondent – it was reasonably practicable for the Second Respondent to provide information about the SAM policy and the change in Ms Freer-Ash’s entitlement to collectively negotiated salary increases early in June 2022, before the collective consultation had ended.[78]Further and in the alternative, if we had found there to be special circumstances which rendered it not reasonably practicable for the Second Respondent to perform this duty, we would not have been satisfied that the Second Respondent took all such steps towards performing that duty as were reasonably practicable in the circumstances. In May 2022, the Second Respondent was repeatedly told about the First Respondent’s Pay Policy and alerted that their SAM policy was likely to be a relevant arrangement that needed to be considered. It was not reasonable to rely on an assumption as to how the SAM policy would operate. All reasonable practicable steps would have included obtaining a written copy of the SAM policy or putting in writing the Second Respondent’s understanding of how the SAM policy was being operated and providing this information to the First Respondent.Remedy
[79]We considered the appropriate remedy that it would be just and equitable to award the affected employees. We note this is a punitive award rather than compensation reflecting losses sustained by the employees. We have had regard to the seriousness of the individual failure of each respondent to comply with its TUPE duties.[80]There were substantial mitigating circumstances in relation to the First Respondent’s failure. They did not have sight of Ms Freer-Ash’s measures statement or the measure statements of the other affected employees (as they were provided directly to Ms Freer-Ash and the other affected employees by the Second Respondent). The Second Respondent did not provide the First Respondent with written information about the measures. However, by 22nd June 2022 the First Respondent envisaged the measures and ought to have formally put the information they were aware of about the measures in writing to the Claimant, so the Claimant had the best possible information in the circumstances to be able to represent their members.[81]We accepted that a meaningful voluntary consultation could still have taken place in the time that was still available, had the respondents wished to do so.[82]There was far less mitigation available for the Second Respondent. We noted the Second Respondent had not deliberately provided inaccurate information and had gone to lengths to provide effective information and consultation overall. However, there was a substantial failure to provide accurate information to the Second Respondent about policies that have a profound impact on the affected employees’ future salaries. Further, when the Claimant and First Respondent sought more information in the final days leading up to the TUPE transfer, it still was not provided to the First Respondent and Claimant. We are satisfied that this was a serious failure on the part of the Second Respondent.[83]In all the circumstances it is just and equitable for the First Respondent to be ordered to pay 1 week’s pay to each affected employee per Regulation 15(8) and the Second Respondent to be ordered to pay 7 weeks’ pay to each affected employee per Regulation 15(7) TUPE.