Not Just Cleaning Ltd v LCC Support Services Ltd (England and Wales : Unfair Dismissal) -[2018] UKET 3201964/2016- (18 October 2018)

Key Facts

Issues

• The Tribunal determined that NJC was on notice of Mr Narvaez's potential claims by 10 May 2016 and could have reasonably presented its TUPE Regulation 11 claim earlier.
• The Tribunal confirmed that a TUPE transfer occurred on 1 May 2016, as agreed between the parties.
• The Tribunal found LCC did not comply with Regulation 11, as critical information about Mr Narvaez's dismissal, reinstatement, and potential claims was omitted from the TUPE employee liability notification.
• The Tribunal considered whether NJC could have reasonably mitigated its losses by taking earlier action to address Mr Narvaez's claims following the TUPE transfer.
• The claim alleges LCC Support Services Limited failed to provide employee liability information under TUPE Regulation 11, including details of Mr Narvaez's disciplinary actions, appeal, and potential claims.
• NJC sought compensation under TUPE Regulation 12 for losses incurred due to LCC's failure to provide employee liability information, including legal fees from defending Mr Narvaez's claim.
• NJC admitted its claim was presented out of time, as it was not submitted within three months of the 1 May 2016 transfer or within a reasonable period thereafter.

Holdings

• The claim is struck out on the basis that it was presented out of time and it was reasonably practicable to present the claim in time.
• The Tribunal found that LCC Support Services Limited failed to comply with regulation 11 of the TUPE regs by not providing employee liability information regarding Mr Narvaez's disciplinary actions, reinstatement, and potential claims to Not Just Cleaning Limited.
• The claimant's application for costs against the respondent is dismissed, as it was reasonable for LCC to defend the claim on the grounds of being out of time, and there was insufficient evidence of unreasonable conduct by LCC.

Remedies

• The claimant's claim was struck out on the basis that it was presented out of time and it was reasonably practicable to present the claim in time. The Tribunal dismissed the claim due to the three-month time limit under regulation 11 not being met, and no reasonable extension being justified.
• The claimant's application for costs was unsuccessful. The Tribunal found that the respondent's defense regarding the time limit was reasonable and there was insufficient evidence of unreasonable conduct by the claimant to justify a costs award.

Legal Principles

• The Tribunal applied costs principles under Rule 76 of the Employment Tribunal Rules, which allows for costs orders where a party has acted vexatiously, abusively, or unreasonably, or where a claim has no reasonable prospect of success. The decision also referenced Rule 37 for striking out claims out of time.
• The Tribunal determined that the claim was out of time under TUPE Regulation 12(2), which requires claims to be presented within three months of transfer or a reasonable extension. It also considered the duty to mitigate loss under TUPE Regulation 12(6) but found no punitive compensation applicable.

Precedent Name

• Wilding v British Telecommunications Plc
• Shields Automotive Limited v Shields and another
• Ms S Paul & others v (1) PFGPS Limited t/a Clapham SPMS (2) The Awareness Centre Limited (3) Streatham Neighbourhood Talking Therapies Limited

Cited Statute

• Employment Rights Act 1996
• Employment Tribunals Rules of Procedure
• Employment Tribunal Rules
• Transfer of Undertakings (Protection of Employment) Regulations 2006
• Tribunals Act 1996

Judge Name

Passage Text

• The Tribunal finds that LCC breached regulation 11 of the TUPE regs by failing to provide this information to NJC.
• Therefore, the Tribunal finds that NJC's claim is out of time as it was not presented within three months from the date of the transfer, and any extended period due to ACAS early conciliation. It was reasonably practicable for NJC to present their claim within three months beginning with the date of the relevant transfer and certainly within a reasonable period after the 6 September 2016. The claim form was only presented on 4 November 2016, nearly two months later.
• The claimant's claim fails on the basis it was presented out of time and it was reasonably practicable to present it in time. Therefore, the Tribunal does not have jurisdiction to hear the claim and it is dismissed.