Mr M Taylor v Avonmouth Brake Centre Ltd (In CVL) and Others: 6002789/2024
REASONS
[1]By a claim form dated 23rd May 2024 the claimant brought a claim against the first and/or second respondent for a redundancy payment. He asserted that he had been employed from 14th April 2011. He had been informed on 19th November 2023 that he had been made redundant two days earlier on 17th November 2023 when the first respondent ceased trading. He commenced employment with the third respondent on 20th November 2023, having been informed that his employment was not the subject of a TUPE transfer, and that 1 of 4 he could apply for a redundancy payment from the RPS/SoS (R2) in respect of his dismissal by R1. He commenced what he understood to be fresh employment under a new contract with R3 on 20th November 2023. As he had no continuity of employment he applied for another job, and left the third respondent’s employment on 8th December 2023 having resigned on 6th December. Neither the first or second respondent has made any redundancy payment to him[2]The first respondent is in CVL and has not entered a response to the claim.[3]The second respondent accepts that the first respondent is insolvent, but disputes that it has any obligation to pay any redundancy payment on the basis that in fact the claimant’s employment transferred to R3 via a TUPE transfer, on or about 20th November 2023, and that there was therefore no dismissal by R1, and hence no question of a redundancy payment being due.[4]On the second respondent’s application, the third respondent was added as a respondent to the claim. The third respondent contends that it previously, and still, operated from the same premises as R1 but that the two were entirely separate businesses and legal entities. It was understood that R1 would cease trading on 17th November 2023 and it decided to re-engage all, or nearly all, of R1’s employees starting on 20th November 2023. It and R1 originally considered and understood that this would not constitute a TUPE transfer, but that the employees would be engaged under new contracts of employment by R3. One of those employees was the claimant who was employed by them until 6th December 2023 when he gave two days’ notice of his resignation, with his last day of employment being 8th December 2023. It has subsequently taken legal advice and accepts that there was in fact a TUPE transfer from R1 to it; and that the claimant’s employment transferred to it via that TUPE transfer.[5]It follows that R2 and R3 now both agree that there was a TUPE transfer of the claimant’s employment to R3, so that no question of a redundancy payment in relation to the termination of employment with R1 arises; and R3 contends that the claimant was not dismissed at all, and certainly not by reason of redundancy and that any claim against it for a redundancy payment is bound to fail.[6]Following receipt of the ET3 responses from R2 and R3, on 8th June 2025 EJ Smail directed that the case be listed for today’s preliminary hearing to determine the following issues: i) Whether the claimant’s claim should be struck out as having no reasonable prospect of success; ii) Whether the claimants claim should be made the subject of a deposit order as having little reasonable prospect of success; iii) To give case management directions for the future conduct of the claim as necessary.[7]The issues in the case are therefore: 2 of 4 i) Was there a TUPE transfer from R1 to R3 on or about 20th November 2023, as asserted by R2 and accepted by R3. ii) If so did the claimant become an employee of R3 by reason of the transfer; iii) Was he dismissed by redundancy or did he resign from R3 iv) If the claimant’s employment did not transfer to R3 when and why did the claimant’s employment with R1 terminate – on or about 17th November 2023 by reason of redundancy, or 8th December 2023 by reason of his resignation;[8]Put simply, and as explained orally to the claimant in the course of the hearing, in order to win he will need to prove: i) That his employment with R1 came to an end on the 17th November 2023 by reason of redundancy (and not his subsequent resignation); ii) That there was not a TUPE transfer of his employment from R1 to R3 on or about 20th November 2023; iii) Or if there was that he was dismissed by R3 by reason of redundancy.[9]The claimant’s simple point, as expressed during this hearing, is that he has acted at all times in accordance with the information he was given. He is not an employment lawyer and is not himself asserting or contesting that there was or was not a TUPE transfer, but simply repeating the information and advice he was given and acted on at the time. He considers it transparently unfair that he was informed that there was no TUPE transfer, that he had no continuity of employment, and made decisions about his employment on the basis of that information; only to be told now, essentially by the same people, that in fact they accept that there was a TUPE transfer and that he is not entitled to a redundancy payment; and that he, had he but known it, retained his continuity of employment when he became employed by R3.[10]It is difficult not to be extremely sympathetic to the claimant who has acted at all times on the basis of the information provided to him. He is not a lawyer, and would not have had any obvious reason not to accept that the advice was correct. However, it is now agreed by R2 and R3 that the advice was incorrect and that there was a TUPE transfer. The effect, if that is correct, is that there was no dismissal by R1, and his employment transferred to R3. He was not dismissed by R1, and was not dismissed by R3 by reason of redundancy but resigned. However, unfortunately for him, this case will not be decided on sympathy but by answering the legal question of whether any of R1, R2 or R3 is legally obliged to make a redundancy payment to him, which is the only claim before the tribunal. If R2 and R3’s assertions are correct the answer to that question is obviously that they do not.[11]I asked the claimant whether he was challenging R2 and R3’s current position, and he accepted that he was not. I asked if he wanted further time to consider his position and whether here were any further submissions he wished to make but he indicated that there were not and that he was in the tribunal’s hands.[12]For the reasons set out above if R2 and R3 are correct neither they, nor R1, can be liable to make a redundancy payment to the claimant, which is the sole claim before me. As their positions are not challenged it appears to me that the strike out applications are bound to succeed; and accordingly the claimant’s claims are 3 of 4 dismissed. Employer’s Counterclaim[13]On the claim against it being dismissed, the third respondent has withdrawn its Employers Counterclaim.