Mrs V Jackaman and Others v Amble Electrical Distributors Ltd and Others: 3308141/2023 and Others
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The respondent has made unauthorised deductions from the claimant’s wages and must pay the claimant £1,939.20 gross.[2]The claimant was dismissed in breach of contract in respect of notice and the respondent must pay damages to the claimant of £4,767.20.[3]The claimant was dismissed by reason of redundancy and is entitled to a redundancy payment of £160.60. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Pursuant to the provisions of Rule 69, the Judgment sent to the parties on 14 February 2024 is corrected as set out in underlined block type in the Judgment.[1]The first respondent has failed to pay the claimant’s holiday entitlement and must pay the claimant £160.60.[2]The claimant was dismissed in breach of contract in respect of her statutory notice and the first respondent must pay damages to the claimant of £1,939.20.[3]The claimant was dismissed by reason of redundancy and is entitled to a redundancy payment from the first respondent of £4,767.20.REASONS
[1]The Tribunal conducted a preliminary hearing to determine whether there was a relevant transfer from the First Respondent to the Third Respondent for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). It is the Second Respondent’s contention that there was a relevant transfer and that it took place before the First Respondent became subject to relevant insolvency proceedings. The claimants, the First Respondent and the Third Respondent contend that there was no relevant transfer and (if there was) that it took place after the First Respondent became subject to relevant insolvency proceedings.[2]The Tribunal heard witness evidence from M Yearnshire, M Everitt, V Jackaman and W Lin. The remaining claimants (S Yearnshire, E Everitt, B Lane and S Lane) did not attend the hearing and did not submit witness evidence. M Yearnshire indicated that he was speaking for himself, S Yearnshire, B Lane and S Lane. M Everitt indicated that he was speaking for himself and E Everitt. Further, Mr Richards-Jones confirmed that he was acting for all claimants and the Third Respondent.[3]The First Respondent is in liquidation and was not represented. M Yearnshire is a Director of the First Respondent and his witness evidence covered relevant information about the First Respondent’s economic activities and insolvency proceedings. The Second Respondent was represented by Mr Soni. The Third Respondent was represented by Mr Richards-Jones. M Yearnshire is a Director of the Third Respondent and his witness evidence covered relevant information about the Third Respondent’s economic activities.[4]The Tribunal had sight of a joint bundle of documents comprising 440 pages. Issues[5]Was there a relevant transfer of undertakings between the First Respondent and the Third Respondent?[6]If there was a relevant transfer, did it take place before the First Respondent was subject to relevant insolvency proceedings for the purposes of Regulation 8(1) TUPE and/or before the First Respondent became the subject of bankruptcy or analogous insolvency proceedings instituted with a view to liquidation of the assets of the First Respondent and under the supervision of an insolvency practitioner for the purposes of Regulation 8(7) TUPE? Findings of FactBackground
[7]The First Respondent was incorporated on 15 February 1996. The claimants M Yearnshire and S Yearnshire are directors and shareholders of the First Respondent.[8]The Third Respondent was incorporated on 30 March 2020. The claimants M Yearnshire and S Yearnshire are directors and shareholders of the Third Respondent.[9]The claimants E Everitt and B Lane are daughters of M Yearnshire and S Yearnshire. The claimant M Everitt is married to E Everitt. The claimant S Lane is married to B Lane.[10]The Third Respondent’s balance sheet for 31 March 2022 reports assets of £1 and “nil” employees (page 186), and the balance sheet for 31 December 2022 again reports assets of £1 and "nil" employees (page 191). In evidence, M Yearnshire confirmed that this is because the Third Respondent was not trading. The balance sheet for 31 March 2024 reports assets of £116,880 and 9 employees (page 197). The Third Respondent’s accounting reference period was adjusted such that the balance sheet for 31 March 2024 covers the period 1 January 2023 to 31 March 2024 (page 194). The Third Respondent therefore started trading at some time on or after 1 January 2023.[11]There is a dispute between the parties as to whether M Yearnshire and S Yearnshire were employed by the First Respondent; the Tribunal has not heard evidence in connection with this issue makes no finding at this stage.[12]The following claimants were employed by the First Respondent until 28 February 2023: M Everitt, E Everitt, S Lane, B Lane, V Jackaman, and W Lin.[13]Save for the information referred to in the Third Respondent’s balance sheets, the Tribunal has not heard evidence on whether M Yearnshire and S Yearnshire are employed by the Third Respondent and, if so, from what date. The Tribunal therefore makes no finding in connection with this issue.[14]The following claimants became employed by the Third Respondent with effect from 1 March 2023: M Everitt, E Everitt, S Lane, B Lane and W Lin. Nature of Business[15]The First Respondent’s web pages described it as an “Independent Wholesale Company supplying leading brand electrical installation products, LED lighting, standard lighting, lamps & tubes, wiring accessories, cable & cable management, circuit protection, heating, distribution, datacoms, UPS & generators, safety & security products, fire alarms, smoke detectors, tools & site equipment, electrical appliances, air conditioning, electrical heating, PPE, batteries, torches and other items (page 257). M Yearnshire described in evidence that the First Respondent was a wholesaler, selling electrical products to the end-user – predominantly local authorities, electrical contractors and members of the public.[16]The First Respondent’s web pages also described that “we specialise in cost effective solutions for public authorities” and lists a number of public authorities the First Respondent has won tenders with (page 258). M Everitt described in evidence that the First Respondent did a lot of work with local authorities and that a key part of his role was to assist S Yearnshire in(i) submitting tenders to local authorities,(ii) operating contracts with local authorities, and(iii) ensuring compliance with ISO 90001:2008 for the purposes of working with local authorities.[17]The Tribunal finds that the First Respondent was a wholesaler of a wide range of electrical products, from various brands and suppliers, selling to local authorities and directly to end-users such as electrical contractors and members of the public.[18]M Yearnshire described in evidence that he set up the Third Respondent in March 2020 with the idea of designing a tails gland (image at page 269). A tails gland is a product already available in the market; the First Respondent and other electrical wholesalers sold/will sell similar items. M Yearnshire’s idea was to alter the insert in the gland by changing the colour to orange and adding the G-Pro brand. M Yearnshire described that he planned to have the tails gland manufactured in China and then import it to the UK to sell through the First Respondent and other wholesalers in the UK. M Yearnshire described in evidence that other wholesalers were unlikely to agree to sell the G-Pro tails gland if it was the First Respondent’s product, because the First Respondent was their competition.[19]At the time that Mr Yearnshire designed the G-Pro tails gland, he was a director of both the First and Third Respondent. In evidence, M Yearnshire described that he designed the G-Pro tails gland with the Third Respondent in mind. The Tribunal notes that the Third Respondent was incorporated with the name Gprokit Ltd. The Tribunal finds that the G-Pro tails gland was designed by M Yearnshire in his capacity as director for the Third Respondent and that the GPro brand was the Third Respondent’s asset at all material times. It has been noted above that the Third Respondent had assets of £1 until the financial year starting 1 January 2023. M Yearnshire described that he ordered a small amount of the G-Pro tails gland directly from China through the First Respondent and that it was sold on the First Respondent’s trade counter along with other products and brands. The Tribunal finds that this does not undermine that the design of the G-Pro tails gland was the Third Respondent’s asset.[20]M Yearnshire described that when COVID hit, shortly after the Third Respondent was incorporated, he had to focus his time and attention on the First Respondent and so his plans to progress the G-Pro brand and grow the Third Respondent were halted.[21]The Third Respondent’s web pages list the products available to purchase (page 266). These include a branded G-Pro Box CU Relocator and categories of other products that do not include the brand name G-Pro. In evidence, M Yearnshire described that the Third Respondent sells G-Pro branded products in each category. He gave examples of products that he has designed or modified under the G-Pro brand including a tails gland (page 269) and an electric vehicle charger (WS paragraph 11A). The summary of evidence submitted for the Third Respondent (page 350) includes a photograph of G-Pro branded products including a CU Relocator, an AC Isolator, and a DC Isolator.[22]The Third Respondent’s web pages described it as a “supplier that focuses on the individual needs of the end user” and “our business constantly adapts to the needs of electrical wholesalers and this is dictated by the end user who need quality supplies in good time and with a reliable supply chain” (page 267). The Third Respondent’s web pages also refer to their business as “we strive to provide quality glands and accessories solely to the electrical wholesaler… stay ahead of your competitors with G-PROKIT” (page 269). It goes on to say “If you are a contractor looking to source our products please check the link Where to Buy to find a stockist near you” (page 269). The summary of evidence submitted for the Third Respondent (page 350) includes a screen shot of the message that a potential customer will receive when trying to order from the Third Respondent’s website (page 350), which indicates all new customers must be approved and set up an account (page 356). M Yearnshire described in evidence that the Third Respondent is a manufacturer and a supplier; it designs products and has them manufactured in China, and then imports and sells the products under the G-Pro brand to wholesalers. M Yearnshire described that the Third Respondent does not sell to local authorities or to end-users such as electrical contractors and members of the public. M Yearnshire described that end-users will not be approved as customers and will be sign-posted to G-Pro stockists. The Tribunal finds that the information referred to from the Third Respondent’s web pages is consistent with this description.[23]The Second Respondent referred to the FORM RP19 completed by M Everitt (page 232) and W Lin (page 226). The form asks for information about the claimants’ employment with the Third Respondent. Question 12 asks: “are you dealing with any or all of the same customers?” The form is designed with tick boxes for yes and no. M Everitt answered yes. However, at box 14 he added “most customers are different, supplying different sector. In evidence M Everitt explained that there was a possibility that another wholesaler may have bought stock from the First Respondent in an emergency and that same wholesaler could be a customer of the Third Respondent. M Everitt described that he didn’t deal with any end-users for the First Respondent, his role was to work with S Yearnshire on the local authority contracts. M Everitt confirmed that the Third Respondent does not have local authorities as customers. W Lin also answered yes. In evidence W Lin indicated that English is not her first language and that she was unsure of how to explain her answer. She explained that she worked on the trade counter for the First Respondent and recognised most of the customers that came in by face, she felt that she was unclear on whether the Third Respondent dealt with the same customers because she is no longer in that role but felt that she would recognise them if she saw them. The Tribunal notes that the Third Respondent’s purchase from the First Respondent did not include the First Respondent’s customer or supplier databases (page 212) and M Yearnshire confirmed in evidence that the Third Respondent did not have the First Respondent’s customer or supplier databases.[24]The Tribunal finds that the Third Respondent designs, has manufactured and imports electrical products. The Tribunal finds that the First Respondent did not design or manufacture electrical products. Although the first batch of G-Pro tail glands was purchased by the First Respondent directly from China (and not via the Third Respondent), the Tribunal finds that the First Respondent was not otherwise involved in the import of electrical products.[25]The Tribunal finds that the Third Respondent is primarily focused on selling GPro brand products whereas the First Respondent sold a wide range of products and brands.[26]The Tribunal finds that the Third Respondent sells only to electrical wholesalers and is therefore best regarded as a supplier. The Tribunal finds that the First Respondent sold to local authorities and end-users such as electrical contractors and members of the public, and is therefore best regarded as a retailer. Premises[27]In July or August 2022, the First Respondent moved to new premises and took a flexible month by month lease of Units 24 and 26, Gosforth Close, Sandy, Bedfordshire, SG19 1RB. The First Respondent had an office and warehouse in Units 24 and 26, and a small trade counter. M Yearnshire and W Lin described in evidence that the First Respondent was open to the public and sold products directly to electrical contractors and members of the public via the trade counter.[28]The Third Respondent operates from Unit 24, Gosforth Close, Sandy, Bedfordshire, SG19 1RB. The Tribunal finds that the First Respondent ceased to occupy Unit 24 and 26 on 28 February 2023 and the Third Respondent began to operate from Unit 24 on 1 March 2023. M Yearnshire described in evidence that the flexible month by month lease of Unit 24 meant that the First Respondent was able to give up Units 24 and 26 on short notice and the Third Respondent was able to enter into a new lease for Unit 24.[29]The Tribunal finds that there was no transfer of a lease for Unit 24. Assets[30]The First Respondent had assets necessary to operate its business. These included warehouse shelving and racking, warehouse equipment including a pallet truck and forklift, stock, a retail counter and payment facilities, retail display units, office equipment including computers and software and furniture, supplier and customer information.[31]The Third Respondent purchased assets from the First Respondent (page 212). This included: £4,000 for “GProKit” plus an additional £500 for a pallet truck and forklift, and £250 for computer equipment and furniture. In evidence M Yearnshire described that the £4,000 for “GProKit” was not a purchase of the brand or business of G-Pro, but a purchase of stock (being the G-Pro tails glands). An email from the First Respondent’s insolvency practitioner to M Yearnshire of 13 November 2023 confirms that the £4,000 purchase was of stock (page 388).[32]M Yearnshire described in evidence that the majority of the First Respondent’s stock and the customer base were sold to third parties. The Tribunal notes a sales invoice (page 213) and the First Respondent’s insolvency practitioner’s undated letter (page 389) that confirm that the majority of the First Respondent’s stock was sold for £25,000 to T9 Electrical Wholesalers Limited. Further, the Tribunal notes a statement from a Director of T9 Electrical Wholesalers Limited which confirms that he paid £25,000 for stock with a value of £100,000 and that he also took a lot of warehouse racking, lighting showroom displays, tool display units and counter displays (page 381).[33]M Everitt described in evidence that the First Respondent used different systems, including Sage for accounts. The Third Respondent does not have these systems.[34]The Tribunal finds that the Third Respondent’s acquisition of assets from the First Respondent was limited to £4,000 for G-Pro brand stock and £750 for various equipment, and that the majority of the First Respondent’s assets were sold to third parties. Employees[35]The First Respondent was a small employer. Aside from M Yearnshire and S Yearnshire, the First Respondent employed M Everitt, E Everitt, S Lane, B Lane, W Lin, V Jackaman and M Martinez-Martin. All employees were made redundant on 28 February 2023.[36]As stated above, M Yearnshire and S Yearnshire have been directors of the Third Respondent since March 2020. The Third Respondent employed M Everitt, E Everitt, S Lane, B Lane, and W Lin with effect from 1 March 2023.[37]The Tribunal heard witness evidence from M Yearnshire that in the First Respondent all staff had specific roles or things that they did, but in the Third Respondent it has been necessary for staff to pull together to make the business work, which has meant that most staff have been focused on sales and growing the Third Respondent’s customer base. M Yearnshire described the changes in roles as follows:a. M Yearnshire was a Managing Director for the First Respondent and is a Managing Director for the Third Respondent. However, his role for the Third Respondent includes different duties including the design of products, liaising with manufacturers in China and selling to wholesalers.b. S Yearnshire was a Managing Director for the First Respondent and is a Managing Director for the Third Respondent. However, her role for the First Respondent involved dealing with local authority contracts (with support from M Everitt) and her role for the Third Respondent is a more general management role. This was also confirmed by M Everitt.c. M Everitt was an Assistant to the Managing Directors for the First Respondent and a key part of his role was to assist S Yearnshire in(i) submitting tenders to local authorities,(ii) operating contracts with local authorities, and(iii) ensuring compliance with ISO 90001:2008 for the purposes of working with local authorities. The Third Respondent does not work with local authorities. M Everitt’s works in Sales for the Third Respondent. This was confirmed by M Everitt who explained that, in addition to telephone and email sales and marketing, he also maintains product listings in catalogues and on websites and sometimes works in the warehouse or packs products for orders.d. E Everitt was in Accounts for the First Respondent. She remains in Accounts for the Third Respondent. M Everitt described that E Everitt’s role has changed in some ways, for example: with the First Respondent she bought product via a buying group, but now she is dealing with credit companies and buying product directly from China.e. S Lane was a Driver for the First Respondent. The Third Respondent delivers products via courier and does not have a company vehicle. S Lane works in Sales for the Third Respondent.f. B Lane was in Accounts for the First Respondent. She remains in Accounts for the Third Respondent, but also assists with Marketing.g. W Lin was a Warehouse Operative for the First Respondent. She worked on the trade counter, selling to end-users and picking orders from the First Respondent’s warehouse. The Third Respondent does not have a trade counter or sell to end-users. W Lin’s role for the Third Respondent includes liaising with manufacturers and suppliers in China, working on the Third Respondent’s website and building product. W Lin speaks Chinese and is able to provide assistance to M Yearnshire in the Third Respondent’s activities. W Lin was not called upon to liaise with suppliers in China when working for the First Respondent. This was confirmed by W Lin.[38]The Tribunal finds that two employees (approximately 22% of the overall staff of the First Respondent) did not become employed by the Third Respondent. The Tribunal finds that the majority of the employees of the First Respondent who did become employed by the Third Respondent took on different roles to those held with the First Respondent. Insolvency Proceedings[39]On 15 February 2023, the First Respondent appointed FRP as their insolvency practitioners (page 401). The letter of engagement states that the First Respondent should “take steps to enter into a Creditors’ Voluntary Liquidation”. It refers to an agreed scope of works at Appendix 1 that was not included in the bundle and was provided separately within the hearing. Appendix 1 states that FRP “will assist” the First Respondent in “dealing with all matters set out below which are required in order to place the Company into Creditors’ Voluntary Liquidation”. It goes to describe the steps that must be taken, including (but not limited to):a. A board meeting of directors to consider the options available and to minute “the decision date on which the creditors will consider the appointment of a Liquidator”;b. A general meeting of shareholders to pass a special resolution that the First Respondent “be wound up voluntarily”.c. A statutory procedure to ensure the creditors can consider the proposed appointment of Liquidators.[40]A special resolution was passed to place the First Respondent into a Creditors Voluntary Liquidation on 5 April 2023. M Yearnshire signed the special resolution on behalf of the First Respondent (page 140). Relevant Law Transfer of Undertakings (Protection of Employment) Regulations 2006Relevant Law
[41]Regulation 3(1) These Regulations apply to (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity.[42]Regulation 3(2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.[43]In Cheesman and others v R Brewer Contracts Ltd 2001 IRLR 144 EAT the EAT confirmed that there are two questions to be answered:a. Was there a relevant and sufficiently identifiable economic entity?b. Was there a transfer of that economic entity?[44]Cheeseman summarised key principles from earlier cases and set out the considerations to be taken into account when determining whether there was a reasonable and sufficiently identifiable economic entity. The following are considerations are relevant to the issue before the Tribunal in this matter:a. There needs to be a stable economic entity whose activity is not limited to performing one specific works contract, an organised grouping of persons and assets enabling (or facilitating) the exercise of an economic activity which pursues a specific objective.b. The economic entity must be sufficiently structured and autonomous but will not necessarily have significant assets, whether tangible or intangible.c. An organised grouping of wage-earners who are specifically and permanently assigned to a common task may in the absence of other factors of production amount to an economic entity.d. Any activity of itself is not an entity. The identity of an entity emerges from other factors such as its workforce, management staff, the way in which the work is organised, its operating methods and, where appropriate, the organisational resources available to it.[45]Cheeseman also set out the considerations to be taken into account when determining whether there was a transfer of the economic entity. The following are considerations are relevant to the issue before the Tribunal in this matter:a. The decisive criterion for establishing the existence of a transfer is whether the entity in question retains its identity, as indicated, inter alia, by the fact that its operation is actually continued or resumed.b. In a labour intensive sector, an entity is capable of maintaining its identity after it has transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills of the employees assigned by his predecessor to that tasks. That follows from the fact that in certain labour intensive sectors a group of workers engaged in the joint activity on a permanent basis may constitute an economic entity.c. It is necessary to consider all the factors characterising the transaction in question, but each is a single factor and none is to be considered in isolation.d. Amongst the matters thus falling for consideration are: i. the type of undertaking; ii. whether or not its tangible assets transferred; iii. the value of its intangible assets at the time of transfer; iv. whether or not the majority of employees are taken over by the new company; v. whether or not its customers are transferred; vi. the degree of similarity between the activities before and after the transfer, and the period if any, in which they are suspended.e. Account has to be taken, inter alia, of the type of undertaking or business in issue, and the degree of importance to be attached to the several criteria will necessarily vary according to the activity carried on.f. Where an economic entity is able to function without any significant tangible or intangible assets, the maintenance of its identity following the transaction being examined cannot logically depend on the transfer of such assets. Even where assets are owned and required to run the undertaking, the fact that they do not pass does not preclude a transfer. Discussion and Decision[46]Was there a reasonable and sufficiently stable economic entity?[47]It is not in dispute between the parties that the First Respondent’s business amounted to an economic entity. However, the Tribunal has nevertheless weighed the considerations set out in Cheeseman.[48]The First Respondent was a limited company, owned jointly by M Yearnshire and S Yearnshire, who, for a period of approximately 27 years, directed the First Respondent’s resources for the purpose of selling electrical products to endusers.[49]In February 2023, the First Respondent had 9 staff, whose activities were structured and organised by M Yearnshire and S Yearnshire and each of whom had a specific role to carry out in the operation of the First Respondent.[50]Although not decisive, the First Respondent had both tangible and intangible assets. In February 2023, the First Respondent occupied a small warehouse with a trade counter on a flexible month by month basis. The assets discussed within the preliminary hearing included warehouse shelving/ racking, warehouse equipment (a pallet and forklift truck), stock, retail display units, payment facilities (cash register/ card machine), office equipment, supplier and customer information.[51]The Tribunal concludes that the First Respondent was a stable economic entity for many years and, in February 2023, was operated in an autonomous and structured way by M Yearnshire and S Yearnshire, who directed their assets and resources for the specific purpose of selling electrical products to endusers. The Tribunal therefore concludes that there was a reasonable and sufficiently stable economic entity.[52]Was there a transfer of that economic entity?[53]It is the Second Respondent’s contention that there was a relevant transfer. The Second Respondent contends (page 79) that the business of the First Respondent was disposed of as a going concern and asserts that the operation of the First Respondent was continued by the Third Respondent “with the same or similar activities”. The Second Respondent further submits that: tangible assets transferred, including plant and machinery, the majority of employees transferred, and there is a degree of similarity between the activities before and after the transfer. The Second Respondent describes that the First Respondent were “wholesalers of radio, television goods & electrical household appliances” and the Third Respondent is a “wholesale electrical equipment supplier”. The claimants, the First Respondent and the Third Respondent contend that there was no relevant transfer and that the activities of the Third Respondent are substantially different to that of the First Respondent.[54]The Tribunal has found that the activities of the First Respondent are best described as those of a retailer. The First Respondent sold a wide range of electrical products, from various brands and suppliers, to local authorities and directly to end-users such as electrical contractors and members of the public. By contrast, the Tribunal has found that the activities of the Third Respondent are best described as those of a supplier. The Third Respondent designs, has manufactured and imports own-branded products from China and sells primarily own-brand products to electrical wholesalers. The Tribunal concludes that the Third Respondent sits higher in the supply chain than the First Respondent - if the First Respondent were still trading it would potentially be a customer of the Third Respondent not a competitor in a similar activity. The Tribunal therefore concludes that there is a significant difference between the activities before and after the transfer.[55]As set out in the paragraph above, there is a significant difference between the customers of the First and Third Respondents. The First Respondent had contracts with local authorities and sold directly to end-users such as electrical contractors and members of the public. The Third Respondent does not have contracts with local authorities and does not sell to end-users. The Third Respondent sells to electrical wholesalers. The Tribunal has found that the First Respondent’s customer database was not transferred to the Third Respondent. Although the claimants indicated there was a possibility of a customer of the Third Respondent having previously made a purchase from the First Respondent, the Tribunal accepts the explanation of M Everitt in connection with this and finds that it would be limited to an occasional wholesaler making a purchase from the First Respondent in an emergency. The Tribunal therefore concludes that there is a significant difference between the customers of the First and Third Respondent.[56]The Tribunal has found that the Third Respondent engaged a majority of the First Respondent’s staff. However, the Tribunal concludes that for the most part this was due to familial relations and not in order to make use of the experience and skills of those staff as utilised in the First Respondent’s activities. E Everitt and B Lane are the daughters of M Yearnshire and S Yearnshire. Although the Tribunal accepts there is some degree of similarity in the work carried out by E Everitt and B Lane for the First and Third Respondents in that they are engaged in accounts, it is also accepted that the way in which this work is carried out and the purpose of this work in the context of the First and Third Respondent’s activities has changed. M Everitt and S Lane are the sons-in-law of M Yearnshire and S Yearnshire. The work carried out by M Everitt and S Lane has changed significantly. W Lin is not a family member, though a close relationship was described by M Yearnshire in evidence. The work of W Lin has changed significantly. The Tribunal concludes that the group of workers that were present in the First Respondent and are now engaged by the Third Respondent are not engaged in the same activity.[57]The Tribunal has found that the Third Respondent’s acquisition of tangible assets from the First Respondent was limited to £4,000 for G-Pro brand stock and £750 for various equipment, including a pallet truck and forklift, office computer equipment and furniture. The majority of the First Respondent’s assets were sold to third parties. In particular, the majority of stock along with warehouse racking and retail display units went to T9 Electrical Wholesalers Limited. The Tribunal has found that the G-Pro brand was an asset of the Third Respondent, not the First Respondent. There was no discussion of the value of intangible assets such as the First Respondent’s brand name and goodwill, however from the review of the Third Respondent’s web pages in evidence the Tribunal is satisfied that the Third Respondent is not utilising the same. Further, as noted above, the Third Respondent does not have access to and is not using the First Respondent’s customer information. The Tribunal concludes that although some assets transferred from the First to the Third Respondent, these assets have not been transferred for the purpose of carrying out the same activity.[58]The Tribunal concludes that the economic entity that comprised the First Respondent’s business activities has not retained its identity and has not transferred to the Third Respondent. Accordingly, the Tribunal finds that there has been no relevant transfer for the purposes of TUPE. That being the case, it is not necessary to determine whether there was a transfer before the First Respondent became subject to relevant insolvency proceedings. Approved by: