Ms E Jones and Mr D McKenzie v OCS Food Co Ltd (formerly Atalian Servest Food Company Ltd) and Texture Catering Ltd: 3312352/2023 and others
JUDGMENT
Upon the Claimant’s failure to attend or provide any medical reason for non-attendance and it being the second time the Claimant has failed to attend a Case Management Hearing (previously 14 March 2024), the Claimant’s claims against the Respondent are dismissed as no longer actively pursued.REASONS
The law
[1]The claim was before the Tribunal for a public preliminary hearing to determine whether there had been a transfer from the first respondent to the second respondent under the TUPE Regulations 2006.[2]The second respondent did not attend the hearing. The Tribunal were satisfied that the second respondent had received notice of the hearing because the notice was included with documents which the second respondent had sent to the claimants.[3]The second respondent did not provide any explanation to the Tribunal in relation to the non-attendance. All parties wished to proceed in absence of the second respondent given the delay to date (the case had previously been adjourned from October 2024). There had been very limited engagement by the second respondent to date and, indeed, they complied late with the direction of the Tribunal only sending witness evidence on 1 October 2025. I considered that in light of the late compliance it was unlikely that the second respondent would engage further or attend if I postponed the hearing. In the circumstances I considered it in the Case Number: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 2 interests of justice to proceed and heard the evidence on the preliminary issue to be determined.[4]Having done so, I concluded that there was a relevant transfer from the first respondent to the second respondent on 12 June 2023. Judgment was sent to the parties on 23 October 2025 and the second respondent requested written reasons which was referred to EJ French on 30 October 2025. I apologise for the delay in providing the same, owing to other sitting commitments.The issues
[5]The issues are identified in the case management order of Employment Judge Young dated 8 May 2024 which is at pages 220 and 222 of the bundle and set out as follows using the same numbering: TUPE (transfer of undertakings (protection of Employment) Regulations 2006, regulations 3 & 4)1.1 Under reg. 3(1)(b)(ii), that is where 'activities' cease to be carried on by a contractor (here, R1) on a client's (Retail Trust) behalf and are carried on instead by a subsequent contractor (R1).1.2 What are the relevant activities carried out by R1.1.3 Are the activities carried on by R1 or after the relevant date, here 12 June 2023, are fundamentally or essentially the same as those carried on by the R2. (Minor differences may properly be disregarded. This is essentially a question of fact and degree for the Employment Tribunal).1.4 Even where the activities remain essentially the same before and after the putative transfer date as performed by the original and subsequent contractors an SPC will only take place if the following conditions are satisfied:1.4.1 there is an organised grouping of employees in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;1.4.2 the client intends that the transferee, post-SPC, will not carry out the activities in connection with a single event of short-term duration;1.4.3 the activities are not wholly or mainly the supply of goods (rather than services) for the client's use.Evidence
[6]By way of evidence, I had a bundle consisting of 490 pages. I also had a witness statement bundle consisting of 22 pages. I heard from both claimants, and I also heard from a Mr Martin Stockwin on behalf of the first respondent. I also had regard to closing submissions presented by all parties that are present. Background Case Number: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 3Background
[7]The first respondent is an outsourcing company that provides facilities management and property-related services for a large portfolio of both public and private sector clients throughout the UK.[8]The first respondent was the provider of catering services to Retail Trust (the client) a registered charity that supports those working and retired from the retail industry. This included a catering service to tenants at a number of client sites across the UK, including at Marshall Estate.[9]The claimants were employed by the first respondent to work on the contract at Marshall Estate. Elaine Jones was employed as a Chef Manager from 17 November 2011 and Dennis McKenzie was employed as a Catering Assistant from 11 December 2017.[10]It was proposed that Texture Catering, the second respondent, a catering company, would rent the kitchen facilities at the Marshall estate as a production kitchen for their corporate and private events.[11]The first respondent determined that there would be a service provision change in accordance with regulation 3(1)(b) of TUPE because they understood that the second respondent would continue to provide a lunchtime service to residents and it considered that the lunchtime catering services that would be performed to the residents by the second respondent were fundamentally and essentially the same as the services that had been provided by the first respondent.[12]The first respondent identified that two staff members at the site, the claimants, were assigned to the organised grouping of employees whose employment would transfer to the second respondent when the service provision changed.[13]The first respondent’s position is that on 12 June 2023, pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), the claimants’ employment transferred to the second respondent.[14]The second respondent denies that there was a relevant transfer under the TUPE provisions and states they had no employment or contractual relationship with the claimants.The law
[15]Transfer of Undertakings (Protection of Employment) Regulations 2006 SI 2006/246 (‘TUPE’) provides protection for employees where there is a ‘relevant transfer’ under Reg 3. For this purpose, Reg 3(1)(a) and (b) defines two types of relevant transfer: the first is the transfer of an undertaking, business or part of an undertaking or business situated in the UK involving the transfer of an economic entity; and the second is a ‘service provision change’.[16]Regulation 3(1)(b) TUPE states that the Regulations apply to ‘a service provision change’ where the conditions set out in Reg 3(3) are satisfied. Reg 3(1)(b) goes on to define three different types of service provision change. Case Number: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 4[17]Each of the three SPC scenarios involves ‘activities’ ceasing to be carried out by one person and subsequently being carried out by another. It follows that it is the ‘activities’ that must be identifiable as ‘the same’ pre-and post-transfer if an SPC transfer is to occur.[18]The first appellate decision to consider ‘activities’ in the context of Reg 3(1)(b) was Kimberley Group Housing Ltd v Hambley and ors and another case 2008 ICR 1030, EAT, where the EAT suggested that a tribunal’s first step in assessing whether there has been an SPC should be to identify the relevant activity or activities.[19]In Metropolitan Resources Ltd v Churchill Dulwich Ltd and ors 2009 ICR 1380, EAT it was said that the question of whether Reg 3(1)(b) applies to a particular case is essentially a question of fact, to be determined on the basis of the straightforward language used in the provision. Those statutory words require the tribunal to concentrate on the relevant activities. Tribunals will inevitably be faced with arguments that the activities carried on by the alleged transferee are not identical to the activities carried on by the alleged transferor because there are detailed differences either between what the former does and what the latter did or in the manner in which the former performs and the latter performed the relevant tasks. However, it cannot have been the intention behind the introduction of the SPC provisions that they should not apply because of some minor difference or differences in the nature of the tasks carried out, or in the way in which they are performed. A common-sense and pragmatic approach is required to enable a case in which problems of this nature arise to be appropriately decided. The tribunal needs to ask itself whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried on by the alleged transferor. The answer to that question will be one of fact and degree, to be assessed by the tribunal on the evidence before it.[20]The activities do not need to remain identical post-transfer. The test of ‘fundamentally or essentially the same’ means that a tribunal can disregard those differences it considers to be minor.[21]For an SPC as defined in Reg 3(1)(b)(i), (ii) or (iii) TUPE to amount to a ‘relevant transfer’, each of the conditions set out in Reg 3(3) must be met. These are that: A)‘immediately before the service provision change there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client’ — Reg 3(3)(a)(i) B) ‘immediately before the service provision change the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of shortterm duration’ — Reg 3(3)(a)(ii), and C) ‘the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use’ — Reg 3(3)(b). Findings and conclusions Case Number: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 5 Relevant activities - Issue 1.2[22]In terms of the activities carried out by the first respondent, there is no dispute between the parties present at the hearing as to what they were. They are outlined in the witness statement of Mr Martin Stockwin, particularly at paragraphs 3 and 4. That is agreed by both claimants first in terms of the contents of their own witness statements as to what their roles were, but also when questioned by the first respondent. Those activities include the provision of meals to residents and visitors of the Retail Trust.[23]I do note that that did include both a breakfast and a lunch service. In that regard, both claimants agreed that the lunch service was the main and most important daily service and occupied most of their working time. That is, I consider supported by the original tender that the first respondent applied for at page 249. I can see an overview at page 251. At the bottom of the page there is reference there to the provision of a catering service and my reading of that is that there is emphasis on the lunch meal. That is also supported by page 255 under the subheading ‘menus’ where there is reference to the midday meal being vitally important and reference also to eating the main meal of the day at lunchtime. Are the activities carried on by R2 fundamentally or essentially the same as those carried on by R1 - Issue 1.3[24]Having defined those activities, I go on to look at issue 1.3 of the list of issues at page 220, and that is whether the activities of the second respondent are fundamentally, or essentially the same as those carried on by the first respondent. On that point, the second respondent is not here to give evidence in relation to what activities were carried out by them. There is no explanation from them as to why, and that is in circumstances where I am entirely satisfied that they had notice of this hearing because they attached the notice to the evidence that they submitted in late compliance with the Tribunal’s directions.[25]In those circumstances I do draw an inference from that absence, namely that they did not wish to answer questions in cross examination for fear that their responses would not stand up to scrutiny. It also impacts on the weight I attach to the two witnesses' statements that have been produced, and which appear at pages 18 and 22 of the witness statement bundle. Mr Qumar Caan has produced two statements, and I understand by way of the order in which the statements were provided, that the tribunal statements at page 20 were provided earlier in proceedings than the statement which appears at page 18. I note that neither of those statements are signed by a statement of truth, signed with a written signature, or dated.[26]In answering the question in terms of the activities, what I can take from the second respondents evidence is, even on the their account, and that is with reference to unnumbered paragraphs, but the second paragraph after bullet point two on page 18 where there is reference to the running of a lunch service.[27]I am also assisted by the actual agreement between the client, that is the Retail Trust, and the second respondent at page 383, which I consider is plainly an agreement to provide catering services. That is evident from the title of the Case Number: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 6 document because it refers to the same. There is also reference at paragraphs A to the Retail Trust, that being the same client of the first respondent, and sets out the provision of catering services to site residents.[28]Clause 2 of that document then sets out the services it expects from the second respondent and again, that sets out the provision of meal services to residents, their families and friends. What is not included is any reference to the frequency of that service in terms of breakfast or lunch, but it is very clear that it is the provision of meals which is the activity carried on by the first respondent.[29]I am further assisted at page 391, that being a letter from the director of the Retail Trust to Mr Stockwin. Within the last paragraph of that there is reference to the site in London (that being the Marshall estate) where it is confirmed that there will be a restaurant service for residents on the estate. Again, I consider that that supports that same activity was to be continued.[30]I note that that is acknowledged by Mr Stockwin at page 393 on 21 March 2023 where he acknowledges that the catering and meal service is going to continue and, as such, TUPE will apply.[31]In relation to the evidence of the second respondent, the original position adopted in paragraph 6 on page 20 of the witness statement bundle was that ‘at no stage were we told we would be required to take on staff previously employed by [the first respondent].’ That is inconsistent with page 406 being an email exchange dated 6 June 2023 between the client and the second respondent stating that TUPE is engaged and the claimants will transfer over to them. Later, I note at page 18 of the witness statement bundle, and within the second to last paragraph on that page, a different position is adopted by Mr Caan where he says ‘two weeks before starting, I received an email from [the first respondent] stating their two staff members, Elaine and Dennis, were being transferred (TUPE’d) to Texture Catering.’[32]As to the activities carried out, I do acknowledge that breakfast service did not continue by the second respondent. The evidence before me, however, was that the main activity was the provision of the lunch service. Ultimately, on the documents before me, and on the claimant’s own evidence, lunch was the most important provision, and that is what was continued by the second respondent. As such I consider this a minor difference and conclude that the activities were fundamentally or essentially the same.[33]I will acknowledge at this point that the second respondent has, throughout these proceedings when they have engaged, placed emphasis on the financial model that they had with the Retail Trust, the client, against that which the first respondent enjoyed. That difference being, I understand, that the first respondent had a subsidised provision in that, a charge was passed on to residents by the Trust, whereas the second respondent was not subsidised in any way and acted financially independently. I do not consider that that question goes to the question of activities carried on, and indeed, observe that it is often the case that one contractor changes to another in circumstances where different rates for the services are agreed between client and contractor. Case Number: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 7[34]I am satisfied therefore that the activities carried out by the second respondent after 12 June, that being the relevant date in this case, were fundamentally, or essentially, the same as those carried on by the first respondent.[35]I go on therefore to look at the points raised in issue 1.4 of the list of issues. Issue 1.4.1[36]I am satisfied that there was an organised grouping of employees. Both claimants worked exclusively at the Marshall Estate and I am satisfied that both claimants belonged to that group. They were principally engaged in carrying out the catering activities of the client. Issue 1.4.2[37]I am also satisfied that this was not a single event with short-term duration. The Catering Service Agreement between the Retail Trust and the second respondent makes that clear, at clause 3 on page 484 that the agreement continues indefinitely until terminated. Further in relation to the termination provisions, at page 487, clause 26, there was a six month notice period within the first year that is reduced to four months thereafter. It is clear on that agreement therefore that it was not a short-term duration. Issue 1.4.3[38]Finally, I am satisfied that the activities are not wholly or mainly the supply of goods for clients use rather than services. This is a catering service, that is what the agreement says, and I rely on the conclusions already made as to the activities carried out in this regard.[39]Therefore, based on those conclusions, I conclude that there was a relevant transfer on 12 June 2023 from the first respondent to the second respondent under Regulation 3(1)(b)(ii). Approved by: Employment Judge French Date: 5 December 2025 SENT TO THE PARTIES ON 8 December 2025 FOR THE TRIBUNAL OFFICE Case Number: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 8 Case Numbers: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 1 EMPLOYMENT TRIBUNALS Claimants: 1. Miss Elaine Jones 2. Mr Dennis McKenzie Respondent: Texture Catering Ltd Heard at: Waford Employment Tribunal On: 4 February 2026 Before: Employment Judge Alliott Representation For the First Claimant: In person For the Second Claimant: Ms Lerona Mais (sister) Respondent: Mr Qumar Islam Caan (director) The First Claimant was unfairly dismissed.[2]The respondent is ordered to pay the claimant a basic award of £8,884.59.[3]The respondent is ordered to pay the First Claimant a compensatory award of £927.17 made up as to:3.1 Loss of earnings in the net sum of £427.17.3.2 Loss of statutory rights: £500.[4]The First Claimant was dismissed in breach of contract in respect of notice and the respondent is ordered to pay damages to the First Claimant in the gross sum of £5,923.06 (subject to tax and National Insurance).[5]The respondent has failed to pay the First Claimant’s holiday entitlement and is ordered to pay the claimant the gross sum of £1,238.43 (subject to tax and National Insurance). Case Numbers: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 2 Recoupment[6]The First Claimant was not in receipt of any state benefits as a result of her dismissal. The Second Claimant (Mr Dennis McKenzie) The Second Claimant was unfairly dismissed.[8]The respondent is ordered to pay the Second Claimant a basic award of £2,813.40.[9]The respondent is ordered to pay the Second Claimant a compensatory award in the sum of £16,255.20.[10]The Second Claimant was dismissed in breach of contract in respect of notice and the respondent is ordered to pay damages to the claimant in the gross sum of £1,875.60 (subject to tax and National Insurance).[11]The respondent has failed to pay the Second Claimant’s holiday entitlement and is ordered to pay the claimant the gross sum of £468.90 (subject to tax and National Insurance). Recoupment The prescribed element is £16,255.20.[13]The prescribed period: 24 July 2023 – 15 August 2024 The total award: £21,413.10. The balance: £5,157.90.The law
[1]By virtue of a judgment issued by Employment Judge French on 7 October 2025, sent to the parties on 23 October 2025, there was a relevant transfer pursuant to Regulation 3 of the TUPE Regulations from the First Respondent to the Second Respondent on 12 June 2023.[2]Both the claimants were employed by the Frist Respondent on 12 June 2023. Consequently, they transferred to the Second Respondent, Texture Catering Ltd, on 12 June 2023.[3]Both the claimants were dismissed by the Second Respondent, Texture Catering Ltd, on 12 June 2023. I find that their dismissal was for a reason connected to the TUPE transfer and, consequently, I find that the claimants were both automatically unfairly dismissed. Case Numbers: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 3 This hearing was listed as a remedy hearing.[5]Mr Kaan, on behalf of the respondent, provided me with a witness statement disputing that there had been a TUPE transfer of the claimants to the respondent. I explained to Mr Caan that the judgment was binding upon me and that the only options available to the respondent in light of the judgment was to make an application for reconsideration and/or appeal to the Employment Appeal Tribunal. The First Claimant[6]The First Claimant began work for the transferor on 17 October 2011.[7]The First Claimant’s monthly gross earnings were £2,333.33, £28,000 gross per annum or £538.46 gross per week.[8]The First Claimant’s net earnings were £1,851.07 per month/£427.17 net per week.[9]The First Claimant was born on 10 January 1962 and was therefore 61 years old at the time of dismissal.[10]The First Claimant had 11 years’ service. Basic award: £538.46 x 16.5 = £8,884.59 Compensatory award[11]The First Claimant was out of work until 11 September 2023. The First Claimant told me that although she was earning less in her new job she did not have any figures, and, consequently, I have no basis upon which to award a continuing diminution in earning capacity.[12]The First Claimant will recover damages for breach of contract for not paying her notice period of 11 weeks. Consequently, I compensate the First Claimant for one weeks’ net earnings to 11 September 2023 in the sum of £427.17.[13]I award the First Claimant £500 for loss of statutory rights. Notice pay[14]The First Claimant was entitled to 11 weeks’ statutory notice. 11 x £538.46 = £5,923.06 gross (subject to tax and National Insurance). Holiday pay[15]The First Claimant was entitled to 33 days holiday per annum (including bank holidays).[16]The First Claimant is recorded as having taken one day holiday and would have had the five bank holidays by 12 June 2023. Case Numbers: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 4[17]The First Claimant had accrued 17.5 days holiday by the date of dismissal.[18]11.5 x £107.69 = £1,238.93 gross (subject to tax and National Insurance). The Second Claimant: Mr Dennis McKenzie[19]The Second Claimant was first employed by the transferor on 11 December 2017.[20]The Second Claimant was born on 12 September 1960 and was therefore 62 years old at the time of dismissal.[21]The Second Claimant was paid £1,354.60 gross per month or £16,255.20 per annum/£312.60 per week.[22]The Second Claimant’s net pay was £1,276.73 per month.[23]The Second Claimant had been employed for six years. Basic award 9 x £312.60 = £2,813.40 Compensatory award[25]The Second Claimant told me that he looked for and applied for jobs following his dismissal and went to the Job Centre. The Second Claimant did not obtain alternative employment until 12 October 2024. I find that the Second Claimant made all reasonable attempts to mitigate his loss and, consequently, I award the Second Claimant compensation for loss of earnings to 12 October 2024 and beyond. In addition, I would award the Second Claimant £500 for loss of statutory rights.[26]The Second Claimant’s award is subject to the statutory cap of £16,255.20. In net earnings that represents 12.73 months. I find that the Second Claimant’s loss was in excess of the statutory cap and, consequently, I award the maximum. The relevant period of loss is from 24 July 2023 until 15 August 2024 (taking into account the six weeks’ notice recovered). Notice pay[27]The Second Claimant was entitled to six weeks’ statutory notice: 6 x £312.60 = £1,875.60 gross (subject to tax and National Insurance). Holiday pay[28]The Second Claimant was entitled to 33 days’ holiday per year (including bank holidays).[29]The Second Claimant was recorded as having had five days holiday which, in addition to the five bank holidays, meant that he had taken 10 days holiday by Case Numbers: 3310754/2023, 3310755/2023, 3310539/2023, 3310540/2023, 3310514/2023, 3310515/2023, 3311786/2023, 3310834/2023 & 3312352/2023 5 the date of dismissal.[30]By the date of dismissal, the Second Claimant had accrued 17.5 days holiday.[31]7.5 x £62.52 = £468.90 gross (subject to tax and National Insurance). Approved by: