Mr V Ram v Santander (UK) plc: 6028251/2025
JUDGMENT
The Judgment of the Tribunal is that the claim is struck out as the Claimant has no standing to bring a claim for protective award.REASONS
These written reasons are given at the request of the Respondent made at thehearing.
[1]Today’s hearing was set down to consider: “Whether the claim should be struck out on the basis that the Claimant has no standing to bring a claim against the Respondent, for the reasons set out in the grounds of resistance, or alternatively, because the Claimant has issued the same claim against the Respondent under case number 2205512/2025 as part of a group action and therefore cannot bring the same proceedings under two separate claims.”[2]I had a bundle of documents from the Respondent, a skeleton argument from Mr Linstead on behalf of the Respondent, as well as a bundle of authorities. The Claimant had set out his opposition to the strikeout application in a letter to the Tribunal on page 91 of the bundle.[3]I did not require Mr Linstead to take me through his written submissions which were clear, but I heard oral submissions from Mr Ram and brief submissions from Mr Linstead in reply. The Claimant confirmed he had a chance to read Mr Linstead submissions and to see the authorities bundle.[4]The Employment Tribunal Procedure Rules 2024 provide, at Rule 38 (1) that the tribunal may strike out all, or part, of a claim on the grounds that it is scandalous or vexatious or has no reasonable prospect of success. Vexatious include claims that are an abuse of process.[5]The claim in this case is a claim for a protective award under Regulations 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). It is not disputed that the Claimant’s employment was transferred by virtue of TUPE from Santander to KPMG, and that he was subsequently made redundant.[6]The Claimant’s claim form is admirably clear. He states that he is making a claim for “a protective award – failure to consult about a redundancy or TUPE transfer”. At box 8.2 in his claim summary he says “I am submitting this claim under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) for protective award due to my employer’s failure to consult prior to a TUPE transfer and proposed redundancy.”[7]At paragraph 3 the Claimant complains that, despite being directly affected by the TUPE transfer and at risk of redundancy, he was not consulted by Santander or the union appointed to represent staff. He also complains that he raised his concerns with Santander but did not receive a satisfactory response. At paragraph 4 under the heading “Legal Basis for Claim”, the Claimant refers to Regulations 13 and 15 of TUPE.[8]The Claimant presented this individual claim to the tribunal on 30 July 2025. Two weeks later on 14 August 2025 the Claimant presented another claim as part of a multiple claim brought by 54 Claimant against both the Respondent and KPMG. It includes claims for “failure to consult under TUPE and Redundancy regulations”, claims for unfair dismissal but also says (somewhat vaguely) that “some individuals are claiming for aspects of discrimination.”[9]In response to the Respondent’s application that this (individual) claim be dismissed because he had issued the same claim against the Respondent in the multiple claim, the Claimant asked that his individual claim be allowed to proceed “in parallel” with the group claim “as this claim includes facts and circumstances specific to my individual circumstances, including correspondence and communications with Santander relating to the TUPE transfer process, which may not be addressed in full in the group proceedings.” Issue one-does the Claimant have standing to bring a claim under Regulation 15 of TUPE?[10]Regulation 13 of TUPE imposes an obligation on an employer of affected employees to inform and consult appropriate representatives about various matters. So far as relevant, “Appropriate representatives” are defined in Regulation 13 (3) as follows “if the employees are of the description in respect of which an independent trade union is recognised by the employer, representatives of the trade union.” It follows that if an employee is employed by an employer who recognises an independent trade union, the obligation on the employer before the transfer is to inform/consult the union, not the individual employees.[11]The mechanism for complaining about a failure to inform or consult is provided by Regulation 15. “(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.[12]In Nationwide Building Society v Benn 2010 IRLR 92 the Employment Appeal Tribunal found that where the complaint is that there has been a failure to inform and consult employee representatives under TUPE that complaint could only be presented by those representatives – in this case the trade union.[13]Mr Linstead, in his helpful submissions, sets out a clear and correct statement of the law. He submits that the Claimant consequently has no standing to bring a claim under Regulation 15, that right being reserved to the recognised trade union.[14]The Claimant accepts that there was a trade union recognised by Santander. (The Respondent employee handbook identifies that Advanced and CWU are recognised unions.) However, he submits that those unions failed to do their duty to consult and inform him, and that the Respondent failed to consult with him when he complained to them that the union had not informed or consulted with him.[15]The Claimant also submitted the threshold for striking out claims is high and that claims should only be struck out in the clearest of cases and that the tribunal only needed to be satisfied that the claim is arguable to allow claim to proceed.[16]The Claimant’s first point is that he should be allowed to present this claim because the union did not consult him and the Respondent did not respond to his complaints about that. Even if that were the case (I have to take the Claimant’s case at its highest) it makes no difference. First the duty is to consult the trade union not to consult the individual employees, and secondly the law is clear that an individual does not have standing to bring a claim for protective award in circumstances where there is a recognised trade union.[17]The Claimant also says that the tribunal ought to hear evidence in order to look at the circumstances of the failure of the union to consult but that does not get round the problem that Regulation 15 makes it plain that, in the circumstances of this case, only the union can bring this claim.[18]I am satisfied that Mr Linstead has correctly set out the relevant law. It is quite clear that, where there is a recognised trade union, it is only the trade union that has the standing to bring a claim for failure to inform and consult. Where an employer recognises an independent trade union the duty to inform and consult is a duty which requires the employer to inform and consult that union. Similarly, Regulation 15 of the TUPE regulations provides that individual employees may only bring a claims for a failure to inform and consult where they relate to a failure related to the election of employee representatives or “in any other case” not covered by the previous paragraphs. But the Claimant situation is indeed covered by the previous paragraphs. The point is clearly set out in Nationwide Building Society v Benn.[19]On that basis the claim has no reasonable prospect of success. This is not a case where there are issues of fact which need to be dealt with at a full hearing. This is a jurisdictional issue, and there is nothing to be gained by proceeding to a full hearing. Issue 2- should the case be struck out as an abuse of process?[20]Mr Linstead also asked me to make a decision as to whether or not the claim should be struck out as an abuse of process because the Claimant is also a party to the subsequent multiple proceedings and part of that claim is a claim for protective award.[21]It is clear that the Claimant is not entitled to bring two claims alleging exactly the same matters. The Claimant says that his individual claim relies on his “personal interaction with Santander and the union – how they consulted with me personally rather than the group.” This reflects a misunderstanding of how Regulations 13 and 15 work. Ordinarily I would have invited the Claimant to withdraw his individual claim as it relates to a single issue whereas the group claim relates to more than just a protective award. However, as the individual claim has now been struck out there is no need to do so.