Allen v Morrisons Facilities Services Ltd
The Employment Appeal Tribunal has held in this case that employees cannot bring a direct claim against a transferee for failure to provide information to a transferor when there is either a transfer of a business or a service provision change.
The EAT held that employees can only bring an action for failure to provide information under TUPE against their current employer. The only method that they can seek compensation from the transferee is to bring a claim against the transferor for breaching the TUPE Regulations, who would then give notice to the transferee and apply to make them a party to the employment tribunal proceedings.
An order for compensation against the transferee will only be awarded if the employees can establish that the transferor is in breach of their obligations and the transferor shows that it was not reasonably practicable for them to perform their duty because the transferee had failed to provide the relevant information
In Practice
Employment Associate Paul Burton says “This case demonstrates that the law sometimes gets in the way of common sense. The EAT had to follow the law as written, but it would make a lot more sense, as well as saving time and money, for the employees to be able to claim directly against the transferee. This would also be more in line with the recent change to the TUPE legislation that allows transferees to consult with employees prior to a transfer with consent from the transferor.”
At Frettens, all of our solicitors offer a free initial meeting to chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.
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