Miss L Church and others v Aspirational Brands Ltd and E.T. Z4 (WR): 4105120/2022 and others
JUDGMENT
[1]That the correct respondent should be Handmade Burger Company Limited having it’s registered office at Unit 9 Buckminster Yard Main Street, Buckminster, Grantham, NG33 5SB and allows the claims to be amended accordingly,[2]Dismisses by agreement the claims against the first respondent[3]That the claims are well-founded and[4]The second respondent company shall pay the claimants the following sums: A) To the first claimant Miss Leanda Church the sum of Two Thousand, Two Hundred and Eight Pounds and Thirty-Three Pence (£2,208.33) as pay in lieu of notice and also; B) The sum of Five Hundred and Forty-Three Pounds and Twenty-Five Pence (£543.25) being accrued holiday pay at the date of dismissal. C) To the second claimant Miss R Irving-Lewis the sum of Seven Hundred and Sixty Pounds (760) (£9.5 x 20 x 4) being one month’s pay in lieu of notice and also D) The sum of One Hundred and Thirty-Three Pounds (£133) (£9.50 x 14 hours) being 14 hours accrued holiday pay. E) To the third claimant Mr Stephen Erskine the sum of Two Thousand Three Hundred and Thirty-Three Pounds (£2,333) being pay in lieu of notice.REASONS
[1]A hearing took place by CVP on 29 November 2022. The claimants were present and gave brief evidence on their own behalf.[2]The first respondent was represented by Mr Alan Prince who explained that he was a Consultant with the second respondent. He appeared for both companies. He said that that the first respondent’s business had been transferred to Handmade Burger Company Limited. That company had been set up for the sole purpose of trading as Handmade Burger Company.[3]After discussion he indicated that the staff, including the claimants, had not been informed formally that the business was now being run by this company nor were new contracts sent out but staff would have become aware of the change as their payslips were now from Handmade Burger Company Limited. That company was still trading and he asked that any sums claimed should be made payable by that company and not by the current respondent who he said had no liability.[4]I asked whether the sums claimed were in dispute. Mr Prince indicated that they were not. I asked how it came to be that the Response forms lodged by the first respondent said that the claimants were not employed by Aspirational Brands Limited. When they had been employed by them until relatively recently. I explained that the claimants had lodged employment contracts which all appeared to be in the name of Aspirational Brands Limited.[5]We examined the contracts that the claimant’s had lodged. The heading in the first claimant’s contract was difficult to understand as it said the employer was Aspirational Brands Limited (Alphadean Ltd) trading as Handmade Burger Co.). I asked Mr Prince to explain what he understood to be the background position. Mr Prince was at pains to refute any suggestion that Aspirational Brands Ltd was the holding company or these companies were part of a group although that seemed to be the practical position.[6]It became clear that Aspirational Brands Limited had a number of limited companies who ran restaurants in their “group” and they also had traded as ‘‘Handmade Burger Co’’. They did so until about March 2022 when Mr Prince explained that the first respondent had divested themselves of their interest in the company by setting up a separate legal limited company the Handmade Burger Company Ltd who then ran the restaurants and paid the claimants. He indicated that there had been a “TUPE” transfer. He was unable to explain how the transfer had been effected or who now held the leases of the various premises.[7]I was told that the employees had not been told formally of the change because the owners had remained the same. I pointed out that this was incorrect as a separate legal entity was set up to run the business and employ staff then it could not be said that the ownership remained the same. Staff were entitled to know who employed them and I observed that the apparent HR advice not to tell staff was bizarre.[8]I then went on to take evidence from three claimants about these matters. The evidence was not challenged by Mr Prince. It was relatively straight forward. Miss Church had been employed as a superviser and then manager. She had signed a contract with the first respondent company as did Mr Erskine. Miss Irving-Lewis had been taken on as a grill chef on 7 July 2022. This was after the date of the purported transfer. She was not told that she was employed by the Handmade Hamburger Company Ltd. She thought this was a trading name. She has completed a personal information form which made reference to the Handmade Hamburger Co. She did not think that the word Ltd had been used in the form. Miss Church and Mr Erskine were also of the view that the personal information forms were never changed to show it was a limited liability company.[9]It is clear that the claimants were sent various documents. One paper headed “Aspirational Brands” was sent to Miss Church on 5 July 2022. Her notice and holiday pay was acknowledged and the communication concludes “Kind Regards Handmade Burger Ltd”. She received a further e-mail on or about 17 August, on this occasion from Mr Prince “Handmade Burger Co. Ltd”. Miss Church produced a letter from Mr Joe Wyper, Head of Operations of Aspirational Brands Ltd to her on 26 August in relation to redundancy. It made no reference to Handmade Burger Company Ltd. She also produced a letter which she had obtained from the former HR Manager from the group. The letter is dated 16 November and indicates that Aspirational Brands are a “group of restaurants”. She had been asked by Miss Church to comment on who the correct employers were. She had indicated that “In your employment with the company you are paid through a firm Alphadean Ltd” at various sites.[10]In summary then the various restaurant premises appear to have been trading under the name Handmade Burger Co. In March/April a new company was incorporated called Handmade Burger Company Ltd reflective no doubt of the trading name. None of the staff received any notification of any change of employer although payslips referenced The Handmade Burger Ltd.[11]Mr Prince’s position was that he was doing the claimants a favour by suggesting that the claims should be made against Handmade Burger Company Ltd as this was still trading and there might be some prospect of payment.[12]There was no dispute that the claimants were not due the pay in lieu of notice which they claimed or holiday pay. They were all due four weeks’ notice in terms of their contracts. Miss Church produced a letter from the first respondents dated 26 July confirming her position. Miss Irving Lewis was contracted to work 20 hours per week and her notice must be based on this. In addition she worked for 19 days and claims 14 hours accrued holidays. Mr Erskine was due one months’ notice based on his salary of £2333 per month.[13]The whole matter was difficult and confusing for the claimants. The paperwork that has been issued on dismissal sometimes refers to the first respondent and some to the new proposed respondent. The issue was which legal entity was left ‘‘holding the baby’’ when the dismissals took place. I explained as best I could what might be involved in a classic TUPE transfer where an undertaking is transferred to another party and the employee’s contracts transfer automatically. The employees here really did not know what was going on behind the scenes.[14]I allowed them 14 days after the hearing to make submissions as to whether they accepted that the claims should be against the new company the Handmade Burger Company Limited or the current first respondent. In due course they indicated that they somewhat reluctantly accepted Mr Prince’s position and would pursue a Judgment against the ‘‘new’’ company as being the true owners at the dates of their dismissal. I will amend the claims accordingly. In the circumstances as the addition of a new respondent was not opposed and indeed sought by a representative of that company, Mr Prince, there is no need for the papers to be reserved as he indicated that there was no dispute as to the sums due. The claims against the first respondent shall be now be dismissed.