Mr Adrian Guzman and others v OrangEgg Property Service Ltd: 3305601/2018 and others
JUDGMENT
[1]The claimants’ contracts of employment transferred to the Respondent under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) on or about 13 December 2017.[2]The respondent had repudiated the contracts.[3]The transfer either involved or was going to involve one or more ‘substantial change in working conditions to the material detriment’ of each of the claimants.[4]The claimants resigned or otherwise accepted the repudiation by declining to attend work in the face of that repudiation and were in the circumstances dismissed with the meaning of section 95(1) of the Employment Rights Act 1996 or dismissed because of operation of Regulation 4(9) TUPE, and[5]The claimants’ dismissals were unfair procedurally and automatically unfair in that (in the words of Regulation 7(1) of TUPE) ‘the sole or principal reason for [the dismissals] was(a) the transfer itself; or(b) a reason connected with the transfer that is not an economic, technical or organizational reason entailing changes in the workforce’ Case No: 3305601/2018; 3305602/2018; 3305603/2018 10.7 Judgment with reasons – rule 62 March 2017REASONS
[1]This was the full merits hearing listed at a Preliminary Hearing before E J Hyams on the 28 August 2018. The case had been listed into Watford Employment Tribunal. As there was no judge to hear it the administration contacted the parties on 5 April 2019 to advise that the hearing was to be heard in Bury St Edmunds. Mr Adrian Guzman explained that they were first telephoned on the Thursday and then received email confirmation. That email was sent @ 10.21 on the 5 April 2019.[2]All the claimants attended this hearing having travelled from Battersea south west London. Mr Alan Gordon of the Respondent emailed the tribunal at 17:58 on Sunday 7 April to advise that the email had gone into his junk mail and he was unable to travel the several hours it would take to the new location. The respondent had been represented by Croner but they had advised the tribunal by email of the 2 April 2019 that they had no instructions from the respondent and asked to be removed from the record as acting for it.[3]On the tribunal file was a notice to show cause from Companies House addressed to the Directors of the respondent, dated 19 February 2019, indicating the intention to strike the company off the register at the expiration of 2 months from the date of the letter.[4]At the preliminary hearing on the 28 August 2018 E J Hyams had conducted a detailed clarification of the claims and made necessary orders up to and including listing the matter for hearing. The claimants informed this tribunal that none of those orders had been complied with by the respondents.[5]Also, at that hearing, having clarified the claims the judge set out at paragraph 14 his view of the legal position (as set out in the judgment above) and explained that he was minded to issue an order to the respondent to show cause why the claims should not succeed. Although Mrs Towill, then acting for the respondent, is recorded as having accepted the judge’s analysis he was persuaded by her to let the matter proceed to a full hearing.[6]This was the full merits hearing. The respondent has been on notice since 28 August 2018 that in the judge’s view its defence had no reasonable prospects of success. It has not engaged in the preparation required for this hearing and has failed to comply with the orders made on 28 August 2018 despite having a representative on the record until the 2 April 2019. The claimants had travelled for approximately 2 ½ hours to attend this hearing. The tribunal was therefore satisfied that it was no longer actively pursuing its reponse or engaging in these proceedings and that judgment should be entered.[7]This tribunal was therefore satisfied that judgment on liability should be Case No: 3305601/2018; 3305602/2018; 3305603/2018 10.7 Judgment with reasons – rule 62 March 2017 entered in the claimants favour and has adopted the wording as set out by E J Hyams on 28 August 2019.[8]Although schedules of loss had been prepared by the claimants they did not have copies with them. An order is made as set out below for these to be updated and filed with the tribunal. If the judge then feels able to do so a judgment on remedy will be issued without the need for the parties to attend another hearing. ORDERS Made pursuant to the Employment Tribunal Rules of Procedure[1]The claimants to file with the tribunal and serve on the respondent updated schedules of loss by the 25 April 2019, which must include the following information:1.1 The dates of employment with the respondent1.2 The date of commencing new employment, if applicable,1.3 Gross and net pay with the respondent and any new employer1.4 The total net pay received from new employment[2]The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’, which can be found at: www.judiciary.gov.uk/publications/employment-rules-and-legislation-practicedirections/[3]The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise) …” If, when writing to the tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written.[4]The parties are also reminded of their obligation under rule 2 to assist the Tribunal to further the overriding objective and in particular to co-operate generally with other parties and with the Tribunal.[5]Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Any further applications should be made on receipt of these orders or as soon as possible.[6]The parties may by agreement vary the dates specified in any order by up to 14 days without the tribunal’s permission except that no variation may be agreed where that might affect the hearing date. The tribunal must be told about any agreed variation before it comes into effect. Case No: 3305601/2018; 3305602/2018; 3305603/2018 10.7 Judgment with reasons – rule 62 March 2017