E M Barron and Others v Polaris Medical Services Ltd (in administration) and Others: 3310301/2023
JUDGMENT
[1]There was a transfer of undertakings within the meaning of Regulation 3 of the Transfer of Undertakings (Protection of Employment) Regs 2006 (the “Regulations”) between the First Respondent and Second Respondent on 31 March 2023.[2]The First Respondent failed to appoint employee representatives within the meaning of reg 13(3) of the Regulations, failed to provide the information required under reg 13(3) of the Regulations and failed to consult within the meaning of regs 13(2) and 13(6) of the Regulations.[3]The Claimants who were affected employees within the meaning of reg 13(1) of the Regulations are each entitled to 13 weeks’ pay. The identification of specific individuals who were affected employees and the quantification of the sums they are owed is adjourned to a future hearing at which time the First Respondent will be ordered to pay the relevant sums to the affected employees.[4]The Second Respondent is jointly and severally liable with the First Respondent for any sums that the First Respondent is ordered to pay in accordance with paragraph 3 above.[5]As accepted and agreed by the Second and Third Respondents, there was a further transfer of undertakings within the meaning of Regulation 3 of the Regulations between the Second Respondent and the Third Respondent on 12 April 2024.[6]The question of whether the Third Respondent is liable for(a) the compensation payable under paragraphs 3 and 4 above;(b) any of the unauthorised deductions of wages or breach of contract claims; or,(c) any compensation arising in respect of the claims of unfair dismissal and/or whistleblowing claims, in respect of Claimants, (a) who had left the Second Respondent’s business prior to the second TUPE transfer on the 12 April 2024; (b) who remained in the Second Respondent’s business at the time of the second TUPE transfer; will be determined at a future hearing.[7]In respect of the transfer on 12 April 2024, as accepted and agreed by the Second Respondent, the Second Respondent failed to appoint employee representatives within the meaning of reg 13(3) of the Regulations, failed to provide the information required under reg 13(3) of the Regulations and failed to consult within the meaning of regs 13(2) and 13(6) of the Regulations.[8]As accepted and agreed by the Second and Third Respondents, the claimants who were affected employees within the meaning of reg 13(1) of the Regulations are each entitled to 13 weeks’ pay. The identification of specific individuals and the quantification of the sums they are owed is adjourned to a future hearing at which time the First Respondent will be ordered to pay the relevant sums to the affected employees.[9]The Third Respondent is jointly and severally liable with the Second Respondent for any sums that the Second Respondent is ordered to pay in accordance with paragraph 8 above.[10]As accepted and agreed by the First and Second Respondents, in respect of any Claimants that were employees or workers at the relevant time, the First Respondent failed to pay those individuals the wages due under their contracts of employment between February 2023 and 31 March 2023. The quantification of any outstanding losses in respect of those unauthorised deductions from wages will be decided at a future hearing. At least one claimant, Ms Johnson, has no losses as her outstanding wages have been paid out of the National Insurance Fund.[11]In light of the fact that some Claimants have lodged related complaints with the Pensions Ombudsman and/or have issued claims in the County Court in respect of alleged deductions of employee pension contributions, the question of whether the Tribunal has jurisdiction to consider those claims and any necessary determination of those claims is adjourned to a future hearing.[12]The claims of Ellie Barron, Jordan Moors, Michael Perrens, Jeanette Perrens and David Thomas are dismissed upon withdrawal. Approved by: