Mr M Strachan and Others v Thevegankind Ltd (In Administration): 4100147/2023 and others (per attached schedule)
JUDGMENT
The Employment Judge has decided to issue the following judgment on the available material under rule 21 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. The respondent failed to comply with the requirements of regulations 13 and 14 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and is ordered to pay compensation of thirteen weeks’ pay to each of the claimants. Although it is no longer a separate respondent, Lillie SPV Limited is jointly and severally liable for that award as transferee.REASONS
[1]The respondent did not present a response to these claims within the applicable time limit.[2]The respondent is in administration, but the administrator consented to the continuation of these proceedings in an email dated 2 February 2023.Background
[3]The claimants were all formerly employed by the respondent at Herschel House, 8 Ashton Rd, Rutherglen, Glasgow, G73 1UB. On 12 October 2022, all of the respondent’s employees including the claimants were informed by letter that their employment had been transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 to Lillie SPV Limited.[4]The claimants were therefore “affected employees” for the purposes of those regulations. There was neither a recognised trade union nor any other appropriate representative of affected employees.[5]Lillie SPV Limited was formerly the second respondent in this claim but the claim that the transferee was in breach of its own obligations to the claimants under the regulations was withdrawn on 22 February 2023. Lillie SPV Limited then applied to be dismissed from the proceedings and on 3 March 2023 a Legal Officer issued a judgment to that effect under rule 52. Failure to elect representatives and to inform and consult[6]Given the absence of any other appropriate representatives, the respondent was under an obligation pursuant to regulations 13(3)(b)(ii) and 14 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 to facilitate the election of employee representatives to whom they could provide information about the transfer and with whom they could consult about the transfer.[7]The respondent failed to facilitate such an election and consequently to inform and consult any such representatives about the transfer. Prior to the date of the transfer, the respondent failed to inform appropriate representatives of the claimants of:(a) the fact that the transfer was 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 the respondent envisaged it would, in connection with the transfer, take in relation to any affected employees; and(d) the measures, in connection with the transfer, which the respondent envisaged the transferee would take in relation to any affected employees who would become employees of the transferee after the transfer by virtue of regulation 4 or, if it envisaged that no measures would be so taken, that fact. Special circumstances[8]There were no special circumstances which would render the provision of the above information or subsequent consultation not reasonably practicable. The respondents took no reasonable steps at all towards compliance with the requirement to inform and consult. Declaration[9]The complaint that the respondent failed to comply with the requirements of regulations 13 and 14 is well founded and accordingly a declaration and award are made under regulation 15(8) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.Compensation
[10]There was a complete failure to comply with the respondent’s obligations and therefore “appropriate compensation” for the purposes of regulation 15(8)(a) is 13 weeks’ pay for each affected employee. It must be paid to each of the affected employees who have brought a claim under regulation 15(1)(a), in other words, the claimants listed in the attached schedule. Joint and several liability[11]The transferee, Lillie SPV Ltd, is jointly and severally liable for that award by virtue of regulation 15(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006. Employment Judge: M Whitcombe Date of Judgment: 04 April 2023 Multiple Schedule Multiple: 4100352 - THEVEGANKIND LTD Case Number Case Name 4100147/2023 Mr Marc Strachan -v- THEVEGANKIND LTD (In Administration) & Others 4100148/2023 Ms hannah stark -v- THEVEGANKIND LTD & Others 4100149/2023 Mr andrew hunter -v- THEVEGANKIND LTD & Others 4100150/2023 Mr andrew lamb -v- THEVEGANKIND LTD & Others 4100151/2023 Mr bryn davies -v- THEVEGANKIND LTD & Others 4100152/2023 Mr cameron hussain -v- THEVEGANKIND LTD & Others 4100153/2023 Ms carla baldwin -v- THEVEGANKIND LTD & Others 4100154/2023 Mr connor marenghi -v- THEVEGANKIND LTD & Others 4100155/2023 Ms emma gangel barclay -v- THEVEGANKIND LTD & Others 4100156/2023 Mr fernando jose pla -v- THEVEGANKIND LTD & Others 4100157/2023 Mr juan carlos pla giraldo -v- THEVEGANKIND LTD & Others 4100158/2023 Ms laura weeks -v- THEVEGANKIND LTD & Others 4100159/2023 Mr marc strachan -v- THEVEGANKIND LTD & Others 4100160/2023 Ms morgan mcbain -v- THEVEGANKIND LTD & Others 4100161/2023 Ms rachel duff -v- THEVEGANKIND LTD & Others 4100162/2023 Ms rhona maxwell -v- THEVEGANKIND LTD & Others 4100163/2023 Ms sinead wall -v- THEVEGANKIND LTD & Others 4100164/2023 Ms veronika panchartkova -v- THEVEGANKIND LTD & Others 4100165/2023 Mr scott mcluckie -v- THEVEGANKIND LTD & Others 4100166/2023 Ms georgia wheatley -v- THEVEGANKIND LTD & Others 4100167/2023 Ms jenna mcguinness -v- THEVEGANKIND LTD & Others 4100168/2023 Ms kate desceras -v- THEVEGANKIND LTD & Others 4100169/2023 Ms lauren hay -v- THEVEGANKIND LTD & Others 4100170/2023 Ms claire mccarlie -v- THEVEGANKIND LTD & Others 4100171/2023 Ms katie mcleod -v- THEVEGANKIND LTD & Others 4100172/2023 Ms emma pender -v- THEVEGANKIND LTD & Others 4100173/2023 Ms simone sherrie -v- THEVEGANKIND LTD & Others 4100174/2023 Mr james willis -v- THEVEGANKIND LTD & Others 4100175/2023 Ms emily bennett -v- THEVEGANKIND LTD & Others 4100176/2023 Ms jane carson -v- THEVEGANKIND LTD & Others 4100177/2023 Mr jordan robertson -v- THEVEGANKIND LTD & Others 4100178/2023 Ms gabriella rodriguez -v- THEVEGANKIND LTD & Others 4100179/2023 Mr leo mcgonigle -v- THEVEGANKIND LTD & Others 4100180/2023 Mr richard james burns -v- THEVEGANKIND LTD & Others 4100181/2023 Ms caroline timmins -v- THEVEGANKIND LTD & Others 4100182/2023 Mr alan appleby -v- THEVEGANKIND LTD & Others