Allen and Others v Morrisons Facilities Services Ltd UKEAT 0298/13; (2014) EMPLR 051
Employment Appeal Tribunal (EAT)
Slade J, Mr C Edwards and Mr J R Rivers CBE
On a TUPE transfer, the transferor must provide employees affected by the transfer with certain information, including the measures it envisages the transferee will take. The transferee must tell the transferor what measures it envisages taking (regulation 13(4)). If it does not, but the transferor has provided its affected employees with all the information it has, then the only remedy affected employees have is against the transferor. If employees sue the transferor, the transferor has a defence (regulation 13(9)) that there were special circumstances (the transferee’s failure to provide the information) which made provision of the information not reasonably practicable. But to use that defence, it must give the transferee notice that it intends to use that defence; the transferee then becomes a party to the proceedings (regulation 15(5)).
This case shows that affected employees cannot simply bring a claim against the transferee. The claim must be against the transferor.
MFSL won a contract to provide housing maintenance services to a local authority. It was accepted that TUPE applied. The transferee did not give the required information about the measures it proposed to take in relation to transferring employees. As a result, the transferor could not give that information to the employee representatives.
The employees sued the transferee but either withdrew or settled their claims against the transferor. The tribunal, upheld by the EAT, dismissed the claims against the transferee because TUPE only provides a remedy for failure to inform against the transferor - the employer at the time of the alleged breach.
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