Automated Summary
Key Facts
The claimant, Mrs. E Ferguson, was employed by Braid Ltd (Burns Bar) from 2016 as a barmaid. She was diagnosed with cancer (a disability under the Equality Act 2010) in 2016 and required adjustments due to chronic fatigue from treatment. The employer unilaterally changed her shifts to include back shifts until 1:30am without consultation, despite her protests and medical evidence. The employer refused reasonable adjustments and failed to address her grievance. On 10 March 2019, the employer purportedly ceased trading and dismissed her as redundant, but the business was immediately resumed by Maggidog Ltd (second respondent) with the same staff, lease, and assets. The claimant was the only employee not to transfer. The tribunal found the dismissal was a sham, directly connected to her disability, and the employer failed to comply with TUPE consultation requirements.
Issues
- The first respondent failed to inform and consult the claimant under TUPE Regulation 13. No employee representatives were elected or consulted about the transfer, breaching the duty to disclose the transfer and its implications.
- The second respondent was jointly and severally liable under TUPE Regulation 15 for the first respondent's failure to consult. The tribunal awarded £1,482 for this failure, payable by both respondents.
- A declaration was made that the first respondent breached TUPE Regulation 13 by failing to elect employee representatives and consult them about the transfer. This failure was central to the claimant's dismissal.
- The first respondent directly discriminated against the claimant under section 15 of the Equality Act 2010. The claimant, who had cancer-related fatigue, was treated unfavourably by being forced to work late shifts without adjustments, which arose from her disability.
- The first respondent victimised the claimant under section 27 of the 2010 Act. After she raised grievances and allegations of discrimination, she was dismissed without consultation, and her transfer rights under TUPE were ignored.
- The tribunal awarded £8,600 for injury to feelings under the 2010 Act, citing prolonged distress from denied adjustments and dismissal. Interest of £143.33 was added for past losses.
- The tribunal determined the dismissal was automatically unfair under TUPE Regulation 7. The transfer of the business to the second respondent on 10 March 2019 was the principal reason for dismissal, as the claimant was the only employee not retained.
- The tribunal found that the claimant was unfairly dismissed by the first respondent under section 94 of the Employment Rights Act 1996. The dismissal was deemed sham redundancy, as the business was transferred to a new entity without proper consultation, and the claimant was the only employee not retained.
- All liabilities of the first respondent transferred to the second respondent under TUPE Regulation 4. The second respondent was held jointly and severally liable for the dismissal and discrimination awards.
- The tribunal concluded the first respondent failed to make reasonable adjustments under section 20 of the 2010 Act. The claimant required day shifts due to fatigue, but the employer refused, causing substantial disadvantage.
- The tribunal awarded £11,081.33 for unfair dismissal and discrimination, and £1,482 for failure to consult under TUPE. The total was deemed payable by the second respondent due to the transfer of liabilities.
Holdings
- The first respondent victimised the claimant under section 27 of the 2010 Act.
- The first respondent failed to make reasonable adjustments for the claimant under section 20 of the 2010 Act.
- There was a relevant transfer between the first and second respondents on 10 March 2019, and the claimant's dismissal was automatically unfair under the Transfer of Undertakings (Protection of Employment) Regulations 2006.
- The claimant is awarded £11,081.33 as compensation for unfair dismissal and disability discrimination by the second respondent.
- All liabilities of the first respondent to the claimant transferred to the second respondent under Regulation 4 of the Regulations.
- The first respondent failed to consult the claimant in relation to the relevant transfer, and the second respondent is jointly and severally liable under Regulation 15.
- The claimant was unfairly dismissed by the first respondent under section 94 of the Employment Rights Act 1996.
- The tribunal declared the first respondent failed to comply with Regulation 13 of the Regulations regarding the election of employee representatives and consultation.
- The claimant is awarded £1,482 for the failure to consult under the Regulations, jointly against both respondents.
- The first respondent directly discriminated against the claimant on grounds arising out of her disability under section 15 of the Equality Act 2010.
Remedies
- The Tribunal issued a declaration that the first respondent failed to comply with Regulation 13 obligations regarding informing and consulting employee representatives during the transfer.
- The claimant was awarded £11,081.33 for unfair dismissal and disability discrimination under the Equality Act 2010, transferred to the second respondent via TUPE regulations. This included compensation for dismissal, discrimination, and failure to consult during the transfer.
- The claimant was awarded £8,600 for injury to feelings due to disability discrimination, plus £143.33 interest, under updated Vento band guidelines for claims post-2018.
- The claimant received £1,482 for the first respondent's failure to consult during the relevant transfer under TUPE Regulations, with the second respondent jointly and severally liable.
Monetary Damages
12563.33
Legal Principles
- The Transfer of Undertakings (Protection of Employment) Regulations 2006 were interpreted using a purposive approach in accordance with the Acquired Rights Directive (2001/23/EC). This principle guided the tribunal's analysis of the business transfer between Braid Ltd and Maggidog Ltd, emphasizing the directive's objective of protecting employee rights during organizational changes.
- The tribunal applied a two-stage burden of proof for discrimination claims, as established in Igen v Wong [2005] IRLR 258 and Madarassy v Nomura International Plc [2007] IRLR 246. The claimant must first establish a prima facie case, after which the burden shifts to the respondent to prove they did not commit the unlawful act. The Court of Appeal in Ayodele v Citylink Ltd [2018] ICR 748 confirmed this approach remains valid under European law.
Precedent Name
- GMB v Susie Radin Ltd
- Harrison Bowden Ltd v Bowden
- Hewage v Grampian Health Board
- City of York Council v Grosset
- Igen v Wong
- Da'Bell v NSPCC
- Sodexo Ltd v EA Gutridge
- Vento v Chief Constable of West Yorkshire Police (No 2)
- Cheesman v R Brewer Contracts Ltd
- Madarassy v Nomura International Plc
- De Souza v Vinci Construction (UK) Ltd
- Williams v Trustees of Swansea University Pension and Assurance Scheme
- G4S Justice Services (UK) Ltd v Anstey
- Basildon & Thurrock NHS Foundation Trust v Weerasinghe
- Efobi v Royal Mail Group
- Sheikholeslami v University of Edinburgh
Cited Statute
- Equality Act 2010
- Transfer of Undertakings (Protection of Employment) Regulations 2006
- Employment Rights Act 1996
Judge Name
Alexander Kemp
Passage Text
- The first respondent failed to make reasonable adjustments for the claimant under section 20 of the Equality Act 2010.
- All liabilities of the first respondent to the claimant transferred from the first respondent to the second respondent under Regulation 4 of the Regulations.
- The judgment of the Tribunal is that the claimant was unfairly dismissed by the first respondent under section 94 of the Employment Rights Act 1996.