Miss E Rodda v The Creation Agency (UK) Ltd and Cleo Marketing Ltd: 3311192/2023 Miss E Rodda v The Creation Agency (UK) Ltd and Cleo Marketing Ltd: 3311192/2023
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 £703.86 gross.[2]The claimant was dismissed in breach of contract in respect of notice and the respondent must pay damages to the claimant of £3,128.21.[3]The claimant was dismissed by reason of redundancy and is entitled to a redundancy payment of £2,931.90.[4]The respondent has failed to pay the claimant’s holiday entitlement and must pay the claimant £341.93.REASONS
[1]The claimant was employed by the first respondent from 30 April 2018 until 6 July 2023 when she was dismissed for the reason of redundancy. The claimant obtained judgment in default against the first respondent on 5 June 2024. The claimant was granted permission to add Cleo Marketing Limited as a second respondent on 16 January 2025. The claimant’s claim is that there was a TUPE transfer of the first respondent’s employees to the second respondent on 6 July 2025 so that it is jointly and severally liable with the first respondent for a redundancy payment and other outstanding payments, and that she claims compensation for failure to consult against the second respondent. The second respondent denies that there was a transfer.[2]Ms Craddock, one of the second respondent’s witnesses, said that all of the employees of the first respondent are parties to a separate claim (3202050/23) which involves the Redundancy Payment Scheme. The claimant said she knew nothing about this. I understand from the second respondent that the Redundancy Payment Scheme argues that there was a TUPE transfer to the second respondent and therefore it will not make payments to the employees of the first respondent. The case has been heard over five days and judgment reserved.[3]In addition, a further single claim (3313571/2023) against the first and second respondents has been determined by way of a judgment in default. In that claim neither respondent attended the hearing on 7 November 2024 and the judge found for the claimant that a transfer from the first respondent to the second respondent had taken place on 6 July 2025. I was provided with the first page of the judgment which does not show reasons and neither party addressed me further on that case.[4]This case has been postponed twice awaiting the outcome of case 3202050/23. A further postponement application was sought by the second respondent on 19 February 2026. The clamant objected and the application was refused by EJ Cowen the same day. EJ Cowen noted that the case 3202050/23 is listed for a further hearing in May 2026. Mr Berman said in answer to my enquiry that he thought reserved judgment would be given orally in May.The Hearing
[5]There was no further request for a postponement, and I proceeded to hear the case and have set out my decision below. The parties filed an agreed joint bundle of 68 pages which contained very little in the way of contemporaneous documentation. I also received three witness statements. One from the claimant and two from the second respondent. These were from Jason Sibley and Haley Craddock. All witnesses attended and gave evidence on oath. Ms Craddock’s statement was not submitted to the claimant or the tribunal until after 9.30 am on the morning of the hearing. The claimant was given time to consider the statement and raise any problems she had which had been caused by its late filing. The claimant said after a break that she was content to continue with cross examining Ms Craddock.The Issues
[6]The issues were set out in the Case Management order of EJ L Robertson dated 15 May 2025 as follows:36.1 Was there a relevant transfer from R1 to R2 within the meaning of regulation 3(1)(a) or (b) Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”)?36.2 If so:36.2.1 On what date did the transfer take place?36.2.2 Was the claimant employed by R1 and assigned to the organised grouping of resources or employees that was subject to the relevant transfer, within the meaning of regulation 4(1) TUPE?36.2.3 If so, did the claimant’s contract of employment and associated liabilities transfer to R2 pursuant to regulation 4 TUPE, taking into account the provisions of regulation 8 TUPE?36.2.4 If the claimant’s contract of employment did not transfer to R2 pursuant to regulation 4 TUPE, was her dismissal automatically unfair pursuant to regulation 7(1) TUPE? If so, did R1’s liabilities associated with the claimant’s employment transfer to R2 pursuant to regulation 4(2) TUPE, taking into account the provisions of regulation 8 TUPE?36.2.5 Was the claimant an ‘affected employee’ within the meaning of regulation 13(1) TUPE? If so:36.2.6 Does she have standing to pursue a complaint pursuant to regulation 15 TUPE?36.2.7 Did R1, long enough before the relevant transfer to enable consultation to take place, inform the appropriate representatives of the matters required by regulation 13(2) TUPE?36.2.8 Did R1 consult about any measures it envisaged taking in connection with the transfer, within the meaning of regulation 14(6) TUPE?36.3 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent unreasonably fail to comply with it? Is it just and equitable to increase any award payable to the claimant? By what proportion, up to 25%?[7]There were no changes to the list except that the claimant confirmed that she pursued a claim under s16 TUPE Regulations 2006 (TUPE) against the second respondent only. The inclusion of this allegation was specifically allowed by EJ Tynan in his order dated 16 January 2025. Law[8]Insolvency Act 1986 S86 Commencement of winding up A voluntary winding up is deemed to commence at the time of the passing of the resolution for voluntary winding up.[9]TUPE Regulations 2006 3 A relevant transfer(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; (b) …(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. [(2A) … 4 Effect of relevant transfer on contracts of employment (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer— (a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.(3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, where the transfer is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions. [(4)… Subject to regulation 9, any purported variation of a contract of employment that is, or will be, transferred 8 Insolvency (1) If at the time of a relevant transfer the transferor is subject to relevant insolvency proceedings paragraphs (2) to (6) apply. (2) In this regulation “relevant employee” means an employee of the transferor— (a) whose contract of employment transfers to the transferee by virtue of the operation of these Regulations; or (b) whose employment with the transferor is terminated before the time of the relevant transfer in the circumstances described in regulation 7(1). (3) The relevant statutory scheme specified in paragraph (4)(b) (including that sub-paragraph as applied by paragraph 5 of Schedule 1) shall apply in the case of a relevant employee irrespective of the fact that the qualifying requirement that the employee's employment has been terminated is not met and for those purposes the date of the transfer shall be treated as the date of the termination and the transferor shall be treated as the employer.(4) In this regulation the “relevant statutory schemes” are— (a) Chapter VI of Part XI of the 1996 Act; (b) Part XII of the 1996 Act.(5) Regulation 4 shall not operate to transfer liability for the sums payable to the relevant employee under the relevant statutory schemes.(6) In this regulation “relevant insolvency proceedings” means insolvency proceedings which have been opened in relation to the transferor not with a view to the liquidation of the assets of the transferor and which are under the supervision of an insolvency practitioner.(7) Regulations 4 and 7 do not apply to any relevant transfer where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of an insolvency practitioner.[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 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; (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.[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 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 sub-paragraphs (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) well-founded it shall make a declaration to that effect and may— (a) order the transferor, subject to paragraph (9), to pay appropriate compensation to such descriptions of affected employees as may be specified in the award; or (b) if the complaint is that the transferor did not perform the duty mentioned in paragraph (5) and the transferor (after giving 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).[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 [sections 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 1992 (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. Relevant Findings of Fact 10. The claimant was employed by the first respondent as a graphic designer from 30 April 2018. The first respondent was a marketing company. 11. The second respondent, incorporated in 2008, is also a marketing company. Mr Sibley said that it was incorporated in 2008 as a promotional marketing company. Now it has a specific focus, which the first respondent did not, of ‘purpose-led, Net Zero marketing business built on blockchain rewards.’ This was the uncontested evidence of Mr Sibley, the sole director of the second respondent. The first blockchain reward client was acquired in June 2023. The second respondent’s turnover was £310,000 in the financial year 2023 and £446,000 in the financial year 2024. 12. The first respondent suffered a fall in turn over from £13 million in 2022 to approximately £325,000 in 2023 due to the loss of two major customers. 13. On 6 July 2023 the claimant, along with the other seventeen employees of the first respondent, was sent a letter notifying her that her employment was terminated immediately ‘as a result of the Company’s proposed insolvency’. 14. The claimant had no knowledge before 6 July 2023 that there was a possibility of her contract being terminated. The first respondent did not inform her or consult with her about a transfer of her contract to the second respondent before 6 July 2023. The second respondent did not inform her or consult with her about a transfer of her contract to the second respondent at any time. 15. Between 7 July and October 2023 twelve of the eighteen employees of the first respondent were employed by the second respondent. Eight in July 2023, some immediately, i.e. on 7 July, and the remainder over the following weeks. The claimant was not one of the twelve. 16. The first respondent had seventeen customers. The second respondent provides services to four of those customers. Mr Sibley’s evidence was that the four were ‘later engaged on short standalone Statements of Work’ and that there was no continuity of service. Ms Craddock’s oral evidence on this matter was more detailed, and she said that there was continuity of provision of services to two clients, Lenovo and Brother, specifically in terms of web hosting so their websites did not go down. The provision of that service by the first respondent was specific to those two customers. I accept the evidence of Ms Craddock which was detailed and clear that there was some continuity of service after 5 July 2023 provided by the second respondent in place of the first respondent.[17]It is the claimant’s case that an email was sent to the first respondent’s customers at this time advising the that the first respondent was rebranding. There was no copy of this email in the bundle. Mr Sibley was asked directly in cross examination if he had sent such an email or was aware that another member of staff had done so. He said he had not and was not aware of anyone else doing so. I accept his evidence.[18]Ms Craddock was employed by the second respondent at some point in August 2023. I accept her evidence that the role of business director which she held at the first respondent, a client servicing role, is different to her role with the second respondent as managing director which is an operational role. I find that both were senior management roles. Other employees previously employed by the first respondent had different job titles under the second respondent but were carrying out similar roles in line with their skills and experience. As stated by Ms Craddock in oral evidence, ‘a designer is a designer’.[19]On 25 August 2023 the first respondent passed a resolution for voluntary winding up. The first respondent’s trade name and website were sold to the Creation Agency Inc, located in the USA.[20]The claimant included in the bundle a series of social media screen shots in which people were described as employees of the first respondent. None of the documents were dated and the claimant accepted in cross examination that there may be a delay in updating social media pages.[21]The claimant applied to the Insolvency Service and Redundancy Payments Service for a redundancy payment, arrears of pay, notice pay and holiday pay. In a letter dated 8 September 2023 her application was refused for the following reason: We believe that prior to the insolvency date, the business, or part of the business in which you were employed was transferred to CLEO MARKETING LIMITED, within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 known as TUPE. These regulations protect employees' rights when a business, or part of a business, is transferred to a new owner. If at the time of the transfer the original owner is not insolvent, employees working for the old owner automatically become the responsibility of the new owner and have continuity of employment. The new owner takes over full liability for debts owed under the contract of employment.[22]On 9 September 2023 the first respondent formally appointed a voluntary liquidator.[23]ACAS conciliation took place between the claimant and the first respondent from 25 to 26 September 2023. This claim was issued on 26 September 2023. Submissions[24]For the respondent Mr Berman said that the first respondent was insolvent from 5 July 2023, prior to the claimant’s dismissal and on an application of Regulation 8(7) TUPE, TUPE does not apply. Even if it did, the claimant cannot make out the Spijkers factors and there was no relevant transfer.[25]The claimant said that there was continuity of management, employees and clients across the two respondents, and they were engaged in the same business. The Redundancy Payment Scheme has confirmed that it believes that there was a TUPE transfer in its letter of 8 September 2023. Decision and Reasons[26]At the time of the claimant’s dismissal, the liquidation of the first respondent was ‘proposed’, as set out specifically in the claimant’s dismissal letter. No winding up resolution was made until 25 August 2023. Under s86 Insolvency Act 1986 a voluntary winding up begins when a winding up resolution is passed. As the winding up had not begun when the claimant was dismissed, Reg 8 TUPE does not apply here.[27]I need therefore to go on to consider whether there was a relevant transfer under Reg 4 TUPE. I must start at Reg 3 and determine whether there existed an economic entity before the transfer. No submissions were made by either party on this matter and in the absence of evidence to the contrary I find the first respondent was an economic entity for the purposes of Reg 3(2). I also find that if there was a transfer it can only be a transfer under Reg 3(1) and I have not gone on to consider a service provision change where this was not raised by the parties.[28]I must then consider whether, following the alleged transfer the economic entity it retained its identity. Mr Berman referred me to the guidance set out in Spijkers v Gebroeders Benedik Abattoir CV and anor 1986 2 CMLR 296, ECJ in this respect. In that case the ECJ said that in in determining whether an entity retains its identity ‘it is necessary to consider whether, having regard to all the facts characterising the transaction, the business was disposed of as a going concern’. It went on to note that this ‘will be apparent from the fact that its operation is actually being continued or has been taken over by the new employer with the same economic or similar activity’. The ECJ then went on to set out a list of factors that may be relevant when answering this question, warning that the factors should not be considered in isolation, and may not all be relevant:(1) the type of business or undertaking(2) the transfer or otherwise of tangible assets such as buildings and stocks(3) the value of intangible assets at the date of transfer(4) whether the majority of the staff are taken over by the new employer(5) the transfer or otherwise of customers(6) the degree of similarity of activities before and after the transfer, and(7) the duration of any interruption in these activities.[29]In Cheesman and ors v R Brewer Contracts Ltd 2001 IRLR 144, EAT the EAT advised that all relevant factors must be taken into account and no single factor should be determinative.[30]In reaching my decision on whether a relevant transfer took place I have taken a number of factors into account. I am conscious of the fact that a five day hearing has taken place on much the same claim where the tribunal will have received more and more detailed information than I had before me today. I had before me an agreed bundle of 68 pages, and no disputes were raised with me about the disclosure process, but it contained nothing in the way of documents relating to the work carried out by employees of the first and second respondents, or the nature of the two businesses. The only information I had on that matter was from the largely uncontested witness evidence (oral and written) of Mr Sibley, a director, before the first respondent ceased trading, of both respondents.[31]It is clear that both the first and second respondents are marketing companies, but that the second respondent has a specific market and approach that the first did not.[32]The first respondent had eighteen employees. Eight of those were employed by the second respondent within days of the first respondent ceasing trading and four more were employed in the following three months. In total this constitutes the majority of the first respondent’s employees. My understanding from the evidence of the second respondent’s two witnesses is that while employees may not have retained the same job title, they were still carrying out similar roles, which are roles that you would expect to find within a marketing company.[33]Four of the first respondent’s clients were retained or later became clients of the second respondent. Ms Craddock gave evidence that there was a continuity of supply to two of those where a service provided by the first respondent was taken over and continued by the second respondent. I preferred her evidence to that of Mr Sibley on this point. Mr Sibley said that the second respondent’s turnover was £446,000 in the financial year 2024, which is not much greater than the turnover of the first respondent in the previous year. I therefore do not find that the statistic that the work carried out in relation to the four clients common to both was worth 2% of the first respondent’s turnover in 2022 is a useful statistic for this exercise. It does not tell me what proportion of the turnover of the second respondent in 2024 was attributable to the four clients common to both respondents.[34]It was Mr Berman’s submission that if the first respondent’s main assets did not transfer then there was not a relevant transfer. As set out in Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice 1997 ICR 662, ECJ, how important the transfer of assets, or otherwise, is to a decision on whether an economic identity retains its identity on transfer will depend on the type of entity transferred. It was Mr Sibley’s evidence that there was no transfer of assets as liquidators took possession of the premises and ‘any remaining equipment’. Also that the second respondent did not purchase from the first respondent any ‘software, licences, intellectual property or data’. Neither party made any arguments or submissions about the importance of this in the overall consideration of the transfer. The section of Mr Sibley’s statement from which this information is taken was headed ‘What actually moved – and why that matters’ but there is no explanation as to why it matters. I do not know if the first respondent had intellectual property or licences and I note in terms of data, that there was a crossover of employees between the two companies 6 July 2023, who would have had some knowledge of the first respondent’s data.[35]I also do not know anything about the make-up of the second respondent before it employed twelve of the previous employees of the first respondent, and how much in percentage terms this was an increase in staffing.[36]It is clear from case law that it is not fatal to the retention of identity that the transferee is not carrying on identical business to the transferor (Playle and ors v Churchill Insurance Group Ltd and ors EAT 570/98), or that transfer of assets, will always be a relevant or decisive factor (Suzen).[37]It is my decision that where the majority of the employees of the first respondent were employed shortly after it ceased trading by the second respondent, carrying out the same or similar work, where both companies are marketing companies, have a common director, have clients in common and a continuity of services to two of those clients was provided by way of a transfer of responsibility from the first to the second respondent, and where I have heard no evidence about the significance of non-transfer of assets or precisely what the assets were, that there has been a relevant transfer for the purposes of Reg 3(1)(a) TUPE on 6 July 2023.[38]I find that claimant was employed by the first respondent immediately before the transfer and was assigned to the organised grouping of resources or employees that transferred to the second respondent. No argument was put forward by the second respondent as to why the claimant was not so employed or part of that grouping.[39]I find that the claimant’s contract of employment and associated liabilities transfer to the second respondent pursuant to Reg 4 TUPE, and where insolvency proceedings had not commenced at the date of the transfer, Reg 8 TUPE does not apply. Those liabilities are as set out in the judgment against the first respondent made by EJ Tynan on 5 June 2024 and are as follows: 1. Unpaid wages in the sum of £703.86 gross 2. Breach of contract in the sum of £3128.21 3. Redundancy payment in the sum of £2931.90 4. Holiday pay in the sum of £341.93[40]I find that the claimant was an affected employee as defined at Reg 13(1) TUPE. Where the first respondent had fewer than 50 employees, the duty to inform and consult was with each affected employee (Reg 13A TUPE) unless there were appropriate representatives as defined at Reg 13(3) TUPE. I find and make a declaration for the purposes of Reg 15(8) TUPE that the claimant was not informed or consulted for the purposes of Reg 13 TUPE by the first respondent (the transferee). I find and make a declaration for the purposes of Reg 15(7) TUPE that the claimant was not informed or consulted for the purposes of Reg 13 TUPE by the second respondent (the transferee). Under Reg 15(9) TUPE the second respondent is jointly and severally liable with the first respondent for any complaint upheld under Reg 15(8) TUPE.[41]Where there has been a complaint upheld under Regs 15(7) and 15(8) TUPE, I order the first and second respondent to pay appropriate compensation to the claimant in the sum of £6570, being an amount equal to 13 weeks’ pay. This is in accordance with Reg 16(3) TUPE where it is the maximum amount the tribunal can award. I have awarded the maximum amount as there was no attempt to comply with the duty to consult. I have used the wage figure set out by the claimant in her schedule of loss in this calculation. Approved by: