Ms G Gannon v Ms T Bicaku and others: 3306617/2021
EMPLOYMENT TRIBUNALS
Case No 3306617/2021
Between
Ms G GannonClaimantMs T Bicaku and othersRespondent
Before
Employment Judge BedeauIn person for claimantMs S Tombazidou-Crawford for respondentDate 8 July 2024
JUDGMENT
[1]The claim of failure to inform and consult about a relevant transfer, is not well-founded and is dismissed.
REASONS
[1]By a claim form presented to the Tribunal on 10 May 2021, the claimant alleges that the respondents breached the duty to inform and consult, contrary to Regulations 13, 14 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, “TUPE”. The respondents have denied that they breached of the regulations.[2]Oral judgment was given at the conclusion of submissions when the claimant stated that she would like to appeal. We decided to put the judgment in writing.
The issues
[3]On the 28 January 2022, at a preliminary hearing, Employment Judge Manley set out the claims and issues. They are as follows:-2.1 Whether the respondent failed to inform and consult the claimant about a transfer in accordance with regulations 13 and 13A TUPE; and2.2 If the respondent failed to consult, what is the appropriate level of compensation in accordance with regulations 15 and 16 TUPE?
The evidence
[4]We heard evidence from the claimant who did not call any witnesses. On behalf of the respondents, evidence was given by Ms Sofia TombazidouCrawford. In addition, the parties produced a joint bundle of documents comprising of 115 pages. References will be made the pages as numbered in the bundle.
Findings of fact
[5]Having considered the oral and the documentary evidence, we made material findings of fact.[6]The respondent’s ran a dental practice in Howards Gate, Welwyn Garden City. The main practitioner was Ms Sofia Tombazidou-Crawford who started the practice, Ivory Dental Clinic, in 2003. The practice employed four people. There was no employee or union representative.[7]The claimant commenced employment with the respondents on the 26 February 2018. Over time, she was given the title of Manager of the practice and nothing turns on her competence as a Manager.[8]Ms Tombazidou-Crawford was the subject of professional conduct proceedings before the General Dental Council, “GDC”. The allegations being that she had engaged in dishonest conduct for a period of a year in relation to the claims submitted to the National Health Service. She attended a hearing before the GDC, on the 25 January 2021. On the 29 January 2021, it was confirmed that the GDC made an order on the 21 January 2021, that she be erased from the register and that registration be suspended immediately.[9]In August 2020, those acting on behalf of another dental practice, Dental Beauty, engaged in some cursory discussions with the respondents with a view to the respondents selling the practice. In December of that year, they enquired of the respondents whether it was possible to conduct DBS checks. At that time Ms Tombazidou-Crawford was going through a particularly difficult period with family issues, the health of her husband and her two children. She also had, at that time, to consider the conduct hearing scheduled to take place on the 25 January 2021. For some time, she was not assiduous in pursuing the sale of the practice and had not finally decided whether the practice should be sold.[10]Also working in the practice is the other respondent, Ms Teuta Bicaku. She is a dentist and not someone who was managing the practice, that was really the role of Ms Tombazidou-Crawford assisted by the claimant. We were told, however, by Ms Tombazidou-Crawford, that the practice was a partnership.[11]At or around the end of February 2021, after the conduct hearing, it was mooted that Ms Bicaku should consider taking over the business, with Ms Tombazidou-Crawford playing a subsidiary role. The reason being was that they were both reluctant to sell the practice. It was in Ms TombazidouCrawford’s words “a busy practice with thousands of patients”, but Ms Bicaku did not feel confident enough to take over the running of the business.[12]The respondents continued their discussions with those representing Dental Beauty. She had to tell them, as she is legally obligated to do, about being struck off by the GDC. That put Dental Beauty, who was contemplating purchasing the business, in a slightly stronger position. It reduced its offer on more than one occasion. It, however, engaged in due diligence from January to March 2021 and, we find, that even at that stage no date was set for the eventual sale of the business to it. Dates were proposed, the 1 February, the 1 March by Dental Beauty but these were not agreed to by the respondents as they were again still reluctant to sell the practice.[13]We find that on Friday 5 March 2021, both respondents were again discussing whether to sell the business to Dental Beauty or to any other potential suitor. Although reluctant, Ms Bicaku, over the weekend, conceded that she was not able to run the practice. On Monday 8 March 2021, as she was not confident to manage that practice she communicated he decision to Ms Tombazidou-Crawford at or around 2 o’clock that afternoon.[14]From the message sent on 8 March 2021 at 2:22pm, by Mr Dev Patel, of Dental Beauty, he thanked Ms Tombazidou-Crawford for agreeing to get the deal done and invited her to sign the sale purchase agreement and send it back so that they could arrange for the funds to be sent by their lawyers. (page 104 of the bundle)[15]On Tuesday 9 March 2021, after the sale purchase agreement had been signed, Ms Bicaku rang the claimant to say that she and Ms TombazidouCrawford would be seeing her and other members of staff later that morning. The transfer was due to take place later in the afternoon after closing time and after the staff finished their shifts.[16]There is a dispute as to when that meeting took place. The claimant believed that the meeting took place on the 10 March 2021 and that it was brief. She said in evidence that she was told that the business had been sold “last night” by Ms Tombazidou-Crawford. She suspected that the reason for the sale was to do with the fact that Ms Tombazidou-Crawford had lost her practicing certificate as a dentist. The claimant said that she was shocked at the news of the sale and had to go outside for a short while. She was questioned over the date of the meeting being, as she claimed, on the 10 March 2021. Upon being questioned by the Tribunal she conceded that she may have been wrong about the date, and that it is possible it took place on the 9 March 2021.[17]The evidence that the meeting took place on the 9 March 2021, is consistent with the respondents’ account as it was a day that is etched in Ms Tombazidou-Crawford’s memory. She explained the reason for the sale being that she could no longer run the practice as a dentist in light of the GDC’s ruling, and that Ms Bicaku was unable to take it over. She informed them of the identity of the new owner and the date of the transfer, and stated that they should stay with the new owner. She told the Tribunal, and we accepted her evidence, that she said goodbye for the last time to her staff and to the business she had founded in 2003. We also accepted the respondents’ evidence that the meeting was on the 9 March 2021. We further accepted that there was a discussion on the 9 March, with the claimant in the company of Sharon, a dental nurse, about the sale and the reasons for the sale of the practice.[18]Ms Tombazidou-Crawford told us that she was under the impression that Sharon and the claimant were content to work for the new company, Dental Beauty, but the claimant denied that that was the case.[19]Later they contacted another member of staff, Natalia, who was pregnant at the time with her first child, to inform her about the sale. They told the Tribunal that they were under the impression that Natalia too was content to work for the new company.[20]After the meeting with staff, the respondents had a meeting with the new owners when it was agreed that completion would be that afternoon following a telephone to the respondents’ solicitors that afternoon at 4.45pm by Ms Tombazidou-Crawford. That is confirmed in an email which we have been taken to in the bundle. It states that on the 9 March 2021, “I am pleased to confirm that we have completed.” The email is dated the same day and was sent at 5:38 in the evening. (108).[21]In the claimant’s P45, sent by the respondents, it states that her leaving date was the 9 March 2021, effectively the date when the agreement to complete was signed. The suggestion by the claimant that the respondents turned up on the 10 March 2021 to explain the sale is inconsistent with the contemporaneous documentary evidence and it is difficult to envisage a scenario whereby the respondent would turn up the day after completion to conduct its business affairs in the normal way when the business had been sold to another company and that other company owned it from the evening of the 9 March 2021.[22]In an email dated the 7 July 2021, sent at 8:39 in the evening by the respondents’ solicitors, it states “Under the sale and purchase agreement which was agreed between the parties on 8 March 2021 and which was then subsequently entered into on 9 March 2021 the parties acknowledged that the sale of the Practice by the Sellers to the Buyer on completion shall in respect of the transferring of employees constitute a relevant transfer under the TUPEE Regulations.” (90)[23]We, therefore, find that the transfer took place on the 9 March 2021.[24]According to the claimant, she submitted that she should have been told about discussions to do with the sale of the practice much earlier than on 10 March but in reality she must be referring to the 9 March. According to the respondents, it was not a straightforward process selling or deciding to sell the practice. Several issues came into play. There was a reluctance to sell up until the weekend prior to the 8 March. Not sufficient time to inform their staff until the day of the 9 March when matters were going to proceed to a sale and the claimant, and her colleagues, were informed prior to the relevant transfer. Submissions[25]It is the claimant’s case that she and staff were neither informed not consulted about the transfer until after it had happened, in breach of the TUPE regulations.[26]The respondents submitted that the decision to sell the business was not taken lightly. They did not agree until the weekend before the 8 March 2021. Once they knew that the business would be sold on 9 March, they informed their staff, including the claimant on that day. Accordingly, they did not breach the regulations.
The law
[27]Regulation 13 imposes a duty to inform and consult representatives. Regulation 13(2) reads: “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 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 transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact.”[28]Regulation 13A applies to employers employing fewer than 10 employees. It states: “(1) this regulation applies if, at the time when the employer is required to give information under regulation 13(2) –(a) The employer employs fewer than 10 employees;(b) there are no appropriate representatives within the meaning of regulation 13(3); and(c) you too can the employer has not invited any of the affected employees to elect employee representatives. (2) the employer may comply with regulation 13 by performing any duty which relates to appropriate representatives as if each of the affected employees were an appropriate representative.”[29]Regulation 13(2) only applies if there is a relevant transfer. Regulation 13(2)(a) states that the employer shall inform the affected employees of the transfer, the date or proposed date of it, and the reasons for it. Other provisions apply.[30]The only time at which the respondents had a definitive date was on the 9 March for the sale. By then staff had been informed in the morning of the potential sale of the business later in the afternoon. There was no earlier time at which staff could have been told. The decision, up until the 8 March, was to delay the sale or to avoid a sale. On 8 March the respondents had decided that they would go ahead with the sale and sign the sale purchase agreement.[31]We are satisfied that the claimant and her colleagues were informed, given the proximity of the sale, about the reasons for the sale and the date of the transfer on 9 March 2021. That the sale was going ahead later that day and that they should consider working for Dental Beauty. They were told the identity of the purchaser and that that company will be their new employer. It was the respondents’ understanding that they all agreed to work for the new company.[32]Tribunal has concluded that the respondents have complied with Regulation 13A TUPE Regulations. The claimant’s claim against the respondent is not well-founded and is dismissed.
The Facts
[33]Because of that, the Respondents began having discussions with potential purchasers. One potential purchaser already worked for the business. In addition they also had some discussions with the (three) people who became the directors of Dental Beauty WGC Limited. R2’s evidence was that she could not confirm that the names of the directors of that company [Bundle 129 to 131] were the same as the individuals with whom they were having the discussions, but we are satisfied by comparing the names in those documents to the names in other documents (including the WhatsApp exchanges immediately before the sale in March 2021) that it is the same people.[34]Dental Beauty WGC Limited was incorporated around October 2020. We do not need to decide whether the reason it was incorporated was specifically and solely with a view to buying this specific business (Ivory Dental Clinic). R2 does not dispute the fact that the discussions with the people involved in the eventual purchase (in March 2021) had happened, off and on, since October 2020.[35]On around 29 January 2021, R2 was notified by the General Dental Council (“GDC”) that she could no longer practise. She had one month to appeal she decided not to do so. 10 of 26[36]R2’s inability to practise meant that Ms Bicaku (R1) had to decide whether she would run the business by herself. There was no firm decision that the business would definitely be sold while:36.1 R2 was awaiting the GDC outcome, or36.2 R1 was deciding whether to carry on the business as a sole trader (or with new partners) once it was known that R2 would have to cease practising.[37]At around 2:00 PM on Monday 8 March 2021, R1 told R2 that she had decided she could not run the business by herself and they made a decision to sell.[38]As of that date, Ivory Dental Clinic had 4 employees, including the Claimant.[39]R1 and R2 were able to make prompt arrangements with the individuals running Dental Beauty WGC Limited (“the Buyer”) that that company would buy the business imminently. However, the completion date and the date for the Buyer to start running the business were not finalised on 8 March. The Buyer wanted to have some more information including information about whether the four existing employees would all transfer. If all the employees were willing to transfer then the Buyer was potentially willing to go ahead immediately, but, if not, then the Buyer would potentially require a longer lead in period in order to make arrangements to have staff to run the business on its first day of operating the business.[40]On 9 March 2021, R1 and R2 contacted all four employees. Two of them were not at work.40.1 One was on maternity leave and, on being asked by phone, said she was content to transfer.40.2 Another was a cleaner who was not due to work that day and who did not wish to come in specifically to have a meeting. The cleaner also confirmed by telephone that they were happy to transfer.[41]The other two employees were both at work: the claimant, and her colleague, Sharon. They were contacted in the morning and were told that the partners were attending the premises for a meeting at midday. We accept that the meeting could not take place first thing in the morning because the partners believed that the employees would be dealing with patients.[42]At around midday the meeting took place. There were 4 people in attendance: R1, R2, the claimant and Sharon.42.1 No minutes were taken and nothing about the contents of the meeting was put in writing (by the respondents) immediately before or after the meeting. 11 of 2642.2 We accept that the claimant was told that the business was being sold. We do not accept that she was told that it had already been sold. Notwithstanding the Claimant’s reliance on page 105 of the bundle (text message at 11.46am from one of the Buyer’s directors to R2 about getting funds ready for transfer), our finding is that the sale had not yet taken place.42.3 We accept the Claimant was told that she had the right to transfer under TUPE.42.4 We accept the Claimant was told that if she did transfer under TUPE, her employment contract would be the same and that there would be no changes to pay and conditions, or to continuity of employment.42.5 It is unlikely that the Respondents specifically and expressly told the claimant that she did not have to transfer if she preferred to object. However, we do accept that they asked if she would be staying on and that she confirmed that she would be. Sharon also confirmed that she would be staying on.[43]Our finding is that it was only after R1 and R2 had received answers from all four employees that they would stay with the business after the sale, and after the Respondents has passed that information to the Buyer, that R1 and R2 and Dental Beauty WGC Limited agreed that(i) the sale would go ahead on 9 March 2021 and(ii) that from the next day onwards Ivory Dental Clinic was no longer running the business and Dental Beauty WGC Limited was running it instead.[44]Regardless of whether the claimant was specifically told that she did not have to transfer if she did not want to, she was not told that the business had already transferred and that she had already become an employee the purchaser of the business. In making that finding:44.1 We have taken into account that, at an earlier stage of this litigation, the claimant was previously claiming that the meeting had taken place on 10 March rather than 9 March and that she now accepts it was 9 March. However, that does not significantly impact on her credibility as a whole. We accept it is easy for an honest witness to get dates wrong, especially by just one day.44.2 We have also noted that the claimant accepted orally that the four way meeting between the two respondents and the two employees was more than a simple announcement and that there was, in fact, a discussion. She also accepted that it was more than 10 minutes after the start of that meeting that the representatives of the Buyer arrived on site. Both these points are different to paragraph 3 of the written statement (from April 2022).44.3 The Claimant also accepted that she was told that her terms and conditions would remain the same, and that TUPE applied to the situation. 12 of 2644.4 She accepts that when representatives of the Buyer arrived, they introduced themselves to her and then started attending to other matters (without her involvement) and she thinks they were doing a stock take. This is consistent with what R1 and R2 say about the timing of the agreement and the sale, and does not represent “taking charge” as stated in the Claimant’s written statement.[45]We accept the claimant’s evidence and recollection that once the new people did arrive on site, they arrived after she had already resumed work, after the meeting she (and Sharon) had had with R1 and R2 had finished. We accept that they spent most of their time on site doing stock take rather than talking to her or Sharon.[46]We accept that the claimant was not told the company name by anybody either by R1 and R2 or by anybody else. We reject R1/R2’s suggestion that there was a 3 hour “meeting” between the Claimant and the representatives of the Buyer on 9 March 2021 and we accept that the Claimant was working normally in the afternoon, once the meeting with R1 and R2 had finished.[47]The Claimant was not given the company name on 9 March 2021 or earlier. (She did get it later, and was paid by Dental Beauty WGC Limited and eventually, in June 2021, entered into a settlement agreement with it).[48]Prior to 9 March 2021, the Claimant had been aware, in general, terms, that the business might be sold. She knew, in particular, about R2’s dispute with GDC and that a removal of R2’s right to practise might mean that Ivory Dental Clinic would close or be sold. She was also aware of the GDC decision. However, prior to 9 March 2021, she was not told that a firm decision to sell had been made. During the meeting on 9 March, the reasons for the sale were discussed (and the reasons were as mentioned above, being specifically, R1’s decision not to try to run the business without R2, which we accept was reached on 8 March).[49]There was no specific discussion about agency workers at the 9 March meeting. The Claimant knew the full details of who worked for Ivory Dental Clinic.[50]By the time the claimant went home for the day, on 9 March, she was aware that by the time she came to work the following day she would have a new employer, and that it would no longer be Ivory Dental Clinic, for the reasons which had been explained to her.[51]No information was given to the Claimant in writing on 9 March.[52]The sale completed in late afternoon, very shortly before the email from the seller’s conveyancer at 17:38 [Bundle 108].[53]From 10 March 2021 onwards, for the remainder of her employment, the claimant’s pay and conditions remained the same as they had been pre-transfer. 13 of 26[54]Our finding is that, as of 9 March 2021, Dental Beauty WGC Limited did not have plans to make the claimant redundant or to change her pay or conditions. Their intention – as of 9 March 2021 – was the one that they had conveyed to the Respondents, which was to retain the existing staff, including the Claimant.
The law
[55]The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) apply when there is a “relevant transfer” as defined in the legislation. The Claimant and the Respondent both agree that the Claimant’s employment transferred from Ivory Dental Clinic to Dental Beauty WGC Limited in circumstances which amount to a “relevant transfer” and that TUPE applied.[56]TUPE preserves the contract of employment (subject to some specific exceptions). This case is not about any alleged breaches of contract after the transfer.[57]TUPE creates a right to bring a claim of “automatic unfair dismissal” (for employees who have two years’ employment) in certain circumstances. This case is not about any alleged unfair dismissal.[58]TUPE operates so as to transfer any pre-existing liability that the employer has to the employee so that the Transferee assumes that liability. This case is not about any alleged pre-existing liability.[59]An employee who would otherwise have their contract of employment transferred from Transferor to Transferee can “object” such that their employment comes to an end: Regulations 4(7) and 4(8). Neither side argues that the Claimant objected in this case.[60]Regulation 11 deals with the information which a Transferor (the outgoing employer) is obliged to give to the Transferee (the new employer) about the employees. A breach of this requirement gives the Transferee the right to bring an employment tribunal claim (Regulation 12), but Regulation 11 does not confer any rights on the employees.[61]Regulations 13, 13A, 14 set out the inform/consult obligations. Regulations 15 and 16 set out the details of what can be done where there is an alleged breach of those obligations. In this case, the parties are in agreement (and, in any case, it is our decision) that Regulation 13A applies. When Regulation 13A applies, Regulation 14 does not.[62]The relevant regulations therefore read: 13.— Duty to inform and consult representatives(1) In this regulation and regulations 13A, 14 and 15 references to affected employees, in relation to a relevant transfer, are to any employees of the transferor 14 of 26 or the transferee (whether or not assigned to the organised grouping of resources or employees that is the subject of a relevant transfer) who may be affected by the transfer or may be affected by measures taken in connection with it; and references to the employer shall be construed accordingly.(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. (2A) Where information is to be supplied under paragraph (2) by an employer— (a) this must include suitable information relating to the use of agency workers (if any) by that employer; and (b) “suitable information relating to the use of agency workers” means— (i) the number of agency workers working temporarily for and under the supervision and direction of the employer; (ii) the parts of the employer’s undertaking in which those agency workers are working; and (iii) the type of work those agency workers are carrying out.(3) For the purposes of this regulation the appropriate representatives of any affected employees are— (a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union; or (b) in any other case, whichever of the following employee representatives the employer chooses— (i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this regulation, who (having regard to the purposes for, and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the transfer on their behalf; 15 of 26 (ii) employee representatives elected by any affected employees, for the purposes of this regulation, in an election satisfying the requirements of regulation 14(1).(4) 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).(5) The information which is to be given to the appropriate representatives shall be given to each of them by being delivered to them, or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the trade union at the address of its head or main office.(6) 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.(7) In the course of those consultations the employer shall— (a) consider any representations made by the appropriate representatives; and (b) reply to those representations and, if he rejects any of those representations, state his reasons.(8) The employer shall allow the appropriate representatives access to any affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.(9) 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.(10) Where— (a) the employer has invited any of the affected employee to elect employee representatives; and (b) the invitation was issued long enough before the time when the employer is required to give information under paragraph (2) to allow them to elect representatives by that time, the employer shall be treated as complying with the requirements of this regulation in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.(11) If, after the employer has invited any affected employees to elect representatives, they fail to do so within a reasonable time, he shall give to any affected employees the information set out in paragraph (2).(12) The duties imposed on an employer by this regulation shall apply irrespective of whether the decision resulting in the relevant transfer is taken by the employer or a person controlling the employer. 16 of 26 13A.— Variation to the duty to inform and consult where no appropriate representatives (1) This regulation applies if, at the time when the employer is required to give information under regulation 13(2)— (a) at least one of the following conditions is satisfied— (i) the employer employs fewer than 50 employees; (ii) there are fewer than 10 transferring employees; (b) there are no appropriate representatives within the meaning of regulation 13(3); and (c) the employer has not invited any of the affected employees to elect employee representatives. (1A) For the purposes of paragraph (1)(a)(ii), ”transferring employees” means the employees who work for the transferor and who are to be (or are likely to be) transferred to the transferee’s employment under a relevant transfer. (2) The employer may comply with regulation 13 by performing any duty which relates to appropriate representatives as if each of the affected employees were an appropriate representative. 15.— Failure to inform or consult (1) Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an employment tribunal on that ground— (a) in the case of a failure relating to the election of employee representatives, by any of his employees who are affected employees; (b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related; (c) in the case of failure relating to representatives of a trade union, by the trade union; and (d) in any other case, by any of his employees who are affected employees. (2) If on a complaint under paragraph (1) a question arises 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. (3) If on a complaint under paragraph (1) a question arises as to whether or not an employee representative was an appropriate representative for the purposes of regulation 13, it shall be for the employer to show that the employee representative 17 of 26 had the necessary authority to represent the affected employees except where the question is whether or not regulation 13A applied. (3A) If on a complaint under paragraph (1), a question arises as to whether or not regulation 13A applied, it is for the employer to show that the conditions in subparagraphs (a) and (b) of regulation 13A(1) applied at the time referred to in regulation 13A(1). (4) On a complaint under paragraph (1)(a) it shall be for the employer to show that the requirements in regulation 14 have been satisfied. (5) On a complaint against a transferor that he had failed to perform the duty imposed upon 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; and the giving of the notice shall make the transferee a party to the proceedings. (6) In relation to any complaint under paragraph (1), a failure on the part of a person controlling (directly or indirectly) the employer to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement. (7) Where the tribunal finds a complaint against a transferee 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) wellfounded 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 due 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 sub-paragraph (8)(a) or paragraph (11). (10) An employee may present a complaint to an employment tribunal on the ground that he is an employee of a description to which an order under paragraph (7) or (8) relates and that— (a) in respect of an order under paragraph (7), the transferee has failed, wholly or in part, to pay him compensation in pursuance of the order; (b) in respect of an order under paragraph (8), the transferor or transferee, as applicable, has failed, wholly or in part, to pay him compensation in pursuance of the order. 18 of 26 (11) Where the tribunal finds a complaint under paragraph (10) well-founded it shall order the transferor or transferee as applicable to pay the complainant the amount of compensation which it finds is due to him. (12) An employment tribunal shall not consider a complaint under paragraph (1) or (10) unless it is presented to the tribunal before the end of the period of three months beginning with— (a) in respect of a complaint under paragraph (1), the date on which the relevant transfer is completed; or (b) in respect of a complaint under paragraph (10), the date of the tribunal’s order under paragraph (7) or (8), or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.(13) Regulation 16A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (12). 16.— Failure to inform or consult: supplemental (1) Section 205(1) of the 1996 Act (complaint to be sole remedy for breach of relevant rights) and section 18A to 18C of the 1996 Tribunals Act (conciliation) shall apply to the rights conferred by regulation 15 and to proceedings under this regulation as they apply to the rights conferred by those Acts and the employment tribunal proceedings mentioned in those Acts. (2) An appeal shall lie and shall lie only to the Employment Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of these Regulations; and section 11(1) of the Tribunals and Inquiries Act 19922 (appeals from certain tribunals to the High Court) shall not apply in relation to any such proceedings. (3) “Appropriate compensation” in regulation 15 means 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. (4) Sections 220 to 228 of the 1996 Act shall apply for calculating the amount of a week's pay for any employee for the purposes of paragraph (3) and, for the purposes of that calculation, the calculation date shall be— (a) in the case of an employee who is dismissed by reason of redundancy (within the meaning of sections 139 and 155 of the 1996 Act) the date which is the calculation date for the purposes of any entitlement of his to a redundancy payment (within the meaning of those sections) or which would be that calculation date if he were so entitled; (b) in the case of an employee who is dismissed for any other reason, the effective date of termination (within the meaning of sections 95(1) and (2) and 97 of the 1996 Act) of his contract of employment; (c) in any other case, the date of the relevant transfer. 19 of 26[63]The formal duty for the Transferor to consult (with a view to reaching agreement) the Transferor’s employees [Regulation 13(6) and 13(7)] only applies if the Transferor itself is planning to take measures which affect the employees. This would either be measures before the transfer, or else measures in relation to employees who were not transferring.[64]However, even where there is no formal requirement to “consult” [as per Regulation 13(6) and 13(7)], the Transferor still has to supply the information as required by Regulation 13, and to do so “long enough” before the transfer to allow the employee representatives the opportunity to seek to engage the employer in voluntary consultation. See Cable Realisations Ltd v GMB Northern UKEAT/0538/08/DA.[65]No specific minimum number of days/weeks etc is specified. What is “long enough" will depend on the specific facts and circumstances.65.1 Where Regulation 13A does not apply, then “long enough" will require the Transferor to factor in the length of time that it might take to elect/appoint representatives, and the time for those representatives to interact with the affected employees.65.2 Where the Transferor gives information [as required by Regulation 13(2)(d)] that the Transferee will be taking measures (after the transfer) then that will be relevant to the decision about how much time is “long enough”. Correspondingly, where there are no such planned measures, that will also be relevant[66]In Clark v Middleton(1) Black Dog Hydrotherapy Ltd(2)[2022] EAT 31, the EAT noted: knowing precisely who one's employer is, is of fundamental importance to any employee. Even where … it is known that the new employer is likely to be a newlyformed company, and who its proprietor will be, it still matters to know the name and identity of the unique legal person who will be the employer. … the tribunal therefore should not have viewed this as a mere technicality. It is also a curiosity of the wording of Regulation 13(2) that it does not in terms expressly state that there is a duty to inform affected employees, or the representatives of affected employees, of the identity of the transferee. But there plainly is such a duty; … it is part and parcel of the duty under Regulation 13(2)(a) to inform employees of the fact that the transfer is to take place. An essential facet of being told of that fact, is to be told to whom the transfer will be taking place[67]Comments about how the information is to be supplied are included in Regulation 13(5), as quoted above. It does not replicate the wording of Regulation 11 (which deals with Employee Liability Information to be supplied to Transferee). When this current case (3306617/2021) was at the EAT, the court stated: 20 of 26 (I say in parenthesis that I take from that that the normal way of informing and complying with the obligation under regulation13(2) is to provide a document to the representatives.)[68]However, that comment did not form part of the reason for deciding the appeal. Furthermore, it was an observation that the “normal” way of meeting the obligation would be to supply a document; the EAT did not state that there was no other way of complying with the obligation.[69]Regulation 13(9) (the employer’s potential “special circumstances” defence) is to be construed narrowly (and the Tribunal must note Regulations 15(2) and 15(6), in particular). Generally speaking, ignorance of the obligations will not amount to special circumstances. An insolvency which had been reasonably foreseeable for some time will not necessarily be special circumstance. Similarly, an assertion that information could not be given (sooner) because of a need for confidentiality will not be lightly accepted as demonstrating that the defence is made out. Even if the employer does demonstrate that it would not have been reasonably practicable to give the information on an earlier date, it might also be necessary to demonstrate that it was not reasonably practicable to delay the transfer date to ensure that, thereby, the information had been given “long enough” before the transfer date.[70]As per Regulation 15(8), where a tribunal finds a complaint [under Regulation 15(1)] against the Transferor succeeds, the Claimant is entitled to a declaration. The Tribunal might also award compensation.[71]“Appropriate compensation” is defined by Regulation 16(3) and 16(4). The maximum is 13 weeks pay. A week’s pay is calculated using the formula in the Employment Rights Act 1996 (“ERA”), but without applying the statutory cap which ERA imposes for some purposes.[72]The correct approach was considered in Sweetin v Coral Racing 2006 IRLR 252, EAT. The award is intended to be punitive and should reflect the nature and extent of the employer’s default.72.1 Any losses suffered by the employees will be relevant, but the absence of loss does not prevent an award at the high end of the range.72.2 The Tribunal should assess the seriousness of the breach of the requirements, but may also take into account any mitigating circumstances.72.3 The starting point, when there has been a complete failure, is to award the maximum of 13 weeks, subject to any mitigating factors. (By definition, the mitigating factors would have to be matters that had not been deemed to be good enough to make out the complete “special circumstances” defence.) 21 of 2672.4 However, where there has not been a complete failure, then the default position is not to award the maximum, but rather to take into account all the relevant circumstances, including what the employer did to partially comply with the obligation, and to assess the appropriate number of weeks.72.5 In Clark, the EAT decided that there had been an error of law to award zero for failure to supply the Transferee’s identity. Analysis and conclusions[73]It is common grounds that Regulation 13A TUPE applies. The Respondent was not obliged to liaise with “appropriate representatives” in order to carry out the inform/consult obligations. It was not, therefore, obliged to arrange any elections. Rather it was entitled to discharge the inform/consult obligations “as if each of the affected employees were an appropriate representative.”[74]There were four affected employees, and, as discussed in findings of fact, two of them were contacted by phone, and the other two had a face to face meeting with the Respondents.[75]Regulation 13 does not expressly state that the required information has to be provided in writing.75.1 Regulation 13(2) says “shall inform”, and Regulation 13(2A) refers to information being “supplied”. Those two paragraphs do nothing to rule out oral provision of the information, or to require any written confirmation.75.2 Regulation 13(5) states that the information “shall be given to each of them by being delivered to them, or sent by post to …”. For the words after the word “or”, it is clear that if that option is chosen, then the employer would have to put the information in writing so that it can be posted; there is no way of sending oral information by post. However, the word “or” shows that post is only one of the available methods. In our assessment, the mere fact alone that the employer has the option of putting the information in writing and posting it does not imply that the information has to be in writing even when it is not posted.75.3 Our opinion is that the phrase “delivered to them” means that the employer complies with Regulation 13(5) (in reliance on the words before the “or”) if it ensures that the information is delivered to employees (in a case to which Regulation 13A applies) by any method. The word deliver / delivery / delivered can apply to a written document, but is not confined to that. For example, a tribunal judgment can be “delivered” orally.75.4 So Regulation 13(5) can be satisfied in two ways. By the employer ensuring that the information (in whatever format) is received, or, alternatively, by posting 22 of 26 a written document. It does not have to do both, and provided the information is actually successfully delivered, it does not have to be in writing.[76]The Claimant (and the other employees) were told about the fact that a transfer was going to take place. She was told the reason for the transfer. The reason was the sale of the business. (The Claimant also knew the reasons for the sale.)[77]By the time she left work to go home, at the end of the working day, the Claimant knew that regardless of the precise time of day for the sale of the business (and transfer of employment contract) the timing was such that, by the time she was due to start work on the following day, the transfer would have taken place. Thus, on the assumption she did come to work the next day, she knew that she would be working for a new employer.[78]The claimant was not specifically told that if she asked for more time to think about the information that was given to her then the transfer would be delayed. However, as per the findings of fact, we do accept that(i) she was asked about willingness to transfer and(ii) she said she was willing to transfer and(iii) if, in fact, she had said she was not willing to transfer (or said she was not sure, and needed more time to think) then the transfer would in fact have been delayed. The Buyer’s decision that it was willing to complete on 9 March 2021 and start operating the business from 10 March 2021 was, in part, based on the outcome of the meeting (and earlier phone calls) having been that the employees were willing to stay on.[79]The identity of the new employer was potentially important information. In any event it was a requirement of the legislation that should be given that information and the Claimant did not receive it until after the transfer.[80]She was told, in effect, that there would be no measures. The specific words “there will be no measures” were not used (but the legislation does not require those specific words). She was told that there would be no changes to her working arrangements or pay. We accept that the Respondents believed that to be a true reflection of the Transferee’s intentions. Based on the account given by the Respondents, on the balance probabilities, our decision is that, as of 9 March 2021, Dental Beauty WGC Limited had no plans to make changes which affected the Claimant. We have taken into account the documents in the bundle about what did, in fact, happen after transfer, but neither party has sought to add Dental Beauty WGC Limited as respondent, and the Claimant has accepted that, regardless of what discussions or disagreements there might have been after the transfer, it did, in fact, carry on paying her as before until, a few months later, she and they agreed to enter a settlement agreement.[81]So there has been a failure to comply with the obligations in the legislation, specifically a failure to identify the identity of the Transferee. In Clark v Middleton, the EAT regarded that a requirement of Regulation 13(2), and we agree. As well 23 of 26 as being implicit in Regulation 13(2)(a), the requirement to explain the “legal … implications” [Regulation 13(2)(b)] requires the employee (in a case to which Regulation 13A applies) to be informed that her employment contract will no longer be with the current employer, but will be with a specific, named, new employer.[82]There are no special circumstances such that it was not reasonably practicable to supply the identity of the new employer to the claimant on 9 March 2021. The respondents knew the identity of the new employer (or, at least, their lawyer who was handling the sale did) and could easily have supplied it to the claimant.[83]In terms of the information that was supplied we have considered whether it was supplied long enough before the transfer.[84]There is a good argument that, generally speaking, a period of longer than one day would usually be required, even in cases where no measures are proposed.[85]However, we have accepted that the date of the transfer was not finalised until after the meeting with the claimant. We rejected the Claimant’s recollection that she was told, in the meeting, that the business had already been sold. (And, as discussed above, while the Claimant had argued at the previous tribunal hearing that the meeting was on 10 March – and so the day after the 9 March sale – she now accepts that the meeting was actually around mid-day on 9 March). We also accepted that at least part of the reason that the transfer took place promptly after the meeting (with the sale taking place after 5pm on 9 March, and with Dental Beauty WGC Limited running the business from the next day, 10 March 2021) was that the claimant did not ask for any information that would have required longer than one day to supply, and she did not state or imply that she might do something which would amount to “objecting” (in any form of words) to the transfer of her employment contract, and she did not state or imply that she wanted longer to think about things. For the avoidance of doubt, we are not implying that the inform/consult exercise will have lasted long enough, provided the employees (or representatives) do not expressly request it to be longer; we are merely saying that we accept that, on the facts of this particular case, at the start of the meeting on 9 March 2021, the transfer date was not set in stone and the transfer date would, in fact, have been later had the meeting turned out differently.[86]Therefore in those circumstances, and given that the claimant had been aware for some time that the sale of the business was a possibility, we are satisfied that the information which was actually supplied (that there would be a transfer, and that her terms and conditions would remain unchanged, and the reasons for the transfer and – by the end of the day - the date of the transfer) were supplied to her long enough before the transfer.[87]Therefore there has been a breach of the legislation because the identity of the new employer was not supplied we make that declaration. 24 of 26[88]We have to decide how much compensation up to a maximum of 13 weeks pay is appropriate. The award is intended to be punitive and to reflect the actual facts and circumstances, including the extent of the default.[89]As discussed above most of the information that was supposed to be supplied was, in fact, supplied long enough before the transfer.[90]Furthermore, although the actual company name was not given to the claimant, she was given the opportunity to meet the individuals in charge of the company to which she would be transferring. She was introduced to them by name.[91]No argument has been put forward that if the claimant had known the name of the company then her decision to transfer rather than to object would have been different.[92]We think that compensation which is significantly less than the maximum of 13 weeks is appropriate in these circumstances.[93]We do accept that this was a small employer, and with few employees. On the other hand, the regulations already make some allowance for size (Regulation 13A) and the Respondents did have legal advice available.[94]In all the circumstances, our assessment is that 2 weeks compensation is the appropriate.[95]This is, therefore, 2 multiplied by £580, and the figure is £1160. This is the award we make in accordance with Regulation 15(8)(a) TUPE.[96]Regulation 15(5) did not apply. The Respondents had not notified Dental Beauty WGC Limited that they were seeking to prove that the reason they had not supplied information required by 13(2)(d) was that the transferee had failed to give them the requisite information. (On contrary, they were arguing, and we accepted, that the information was, in fact, given, and that the Claimant was told that no measures were envisaged.) Therefore, Dental Beauty WGC Limited had not become a respondent by the application of Regulation 15(5).[97]However, by virtue of Regulation 15(9) TUPE, Dental Beauty WGC Limited is automatically jointly and severally liable for the compensation which we have decided to award.[98]We stated to the parties that, in principle, we were willing to issue the judgment without adding Dental Beauty WGC Limited as a party, and to give the Claimant liberty to apply for Dental Beauty WGC Limited to be added as a respondent if (after 14 days) the compensation remained unpaid. As a result of the discussions which followed, we decided that we would, instead, order that Dental Beauty WGC Limited be added as a respondent at this stage. 25 of 26[99]As we informed the parties who were present (and as we hereby inform Dental Beauty WGC Limited), Dental Beauty WGC Limited will have the right to seek an order (under Rule 29) seeking to reverse the decision to add them as a party, and will also have the right (under Rule 70) to seek reconsideration of the judgment.