Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    507/12

1314/12

 

 

CLAIMANT:                           William Allen Forbes

 

 

RESPONDENTS:                   1.       Department for Employment and Learning

                                             2.       Kongskilde UK Ltd

                                             3.       JF Stoll (UK) Ltd  (in liquidation)

 

 

 

DECISION

 

(A)       The claimant is granted leave to present a “TUPER” consultation claim against Stoll.  It is decided that that claim is well-founded.

 

(B)       None of the other claims against JF Stoll (UK) Ltd (“Stoll”) is well-founded.  Accordingly, all of those other claims are dismissed.

 

(C)       The tribunal has not as yet made any decision on the question of whether or not the redundancy pay claim against Kongskilde UK Ltd (“Kongskilde”) is well-founded.  A decision on that matter will be made during the course of, or after, the forthcoming remedies hearing.

 

(D)       All of the other claims against Kongskilde are well-founded.

 

(E)       Pursuant to Article 205 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), it is determined that Stoll is not liable to the claimant in respect of a redundancy payment.

 

(F)       The claimant’s appeals against the decisions of the Department for Employment and Learning (“the Department”), in its role as a statutory guarantor in respect of certain debts, are dismissed.

 

 

Constitution of Tribunal:

 

Chairman:                             Mr P Buggy

 

Members:                             Mr A Barron

                                             Mr J Patterson

 

 

Appearances:

 

The claimant was represented by Ms L Clarke, Barrister-at-Law, instructed by Gordon Wallace and Co LLP Solicitors.

 

JF Stoll (UK) Ltd was not represented.

 

Kongskilde (UK) Ltd was represented by Mr T Sheridan of Peninsula Business Services Ltd.

 

The Department for Employment and Learning was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

 

 

REASONS

 

1.       These two cases (507/12 and 1314/12) were heard together.  This is our Decision in respect of both cases.  Later in this Decision, we generally refer to the two cases as though they were one case.

 

2.       Stoll is not a respondent to case 507/12.  Kongskilde and the Department are respondents to that case.  Stoll, Kongskilde and the Department are all respondents to case 1314/12. 

 

3.       This is a Decision in respect of liability only.  A hearing in respect of remedies will take place on 31 May 2013.

 

4.       The claimant was an employee of JF Stoll (UK) Ltd (“Stoll”) for several years.  On 30 September 2011, that company purported to dismiss him, with immediate effect.  Stoll went into administration on 10 November 2011.  It has subsequently been the subject of a creditors voluntary winding-up.  Kongskilde UK Ltd (“Kongskilde”) purported to offer the claimant employment, with effect from 12 October 2011.  Since that date, he has been employed by Kongskilde, and he continues to be employed by that company.

 

5.       In this case, the claimant is pursuing two separate and parallel sets of proceedings.  First, he is making claims against Stoll and Kongskilde.  (Those are the “employer” claims).  Secondly, he is appealing against decisions which the Department for Employment and Learning (“the Department”) made, in relation to applications which he had made to the Department, in its role as the statutory guarantor in respect of certain employment debts.

 

The employer claims

 

6.       The claims against the employer are claims in respect of:

 

wages

 

holiday pay

 

notice pay

 

redundancy pay and

 

unfair dismissal.

 

The appeals

 

7.       The claimant appeals against the refusal of the Department to make payments to him in respect of:

 

wages

 

holiday pay

 

notice pay and

 

redundancy pay.

 

The facts

 

8.       In the following paragraphs, we set out some findings of fact which are relevant to the issues which we have had to address in the course of this Decision.  With a view to avoiding unnecessary duplication, and for ease of reference, we have also included some additional findings of fact elsewhere in this Decision.

 

9.       The claimant was employed by Stoll from August 1973 until September 2011.  By September 2011, the claimant was employed by Stoll as a Technical Sales Manager. 

 

10.     More than 80% of Stoll’s business consisted of the following.  They had exclusive sales rights, in relation to a particular defined sales area, in respect of grass cutting and harvesting agricultural machinery which was manufactured by J F Fabriken AS (“Fabriken”), a Danish company.  They bought the relevant machinery from Fabriken and sold it onwards to agricultural dealers in the relevant sales area.  The sales area with which the claimant was mainly concerned was Northern Ireland and Donegal.  By 2011, the claimant was the only Stoll staff-member who was working in Northern Ireland.  There were four other employees employed in the relevant business by Stoll.  They supplied dealers in England, Scotland and Wales.  By mid-2011, all of those five employees, including the claimant, worked from their respective homes.  By September 2011, an associated company of Kongskilde had acquired the ownership of Fabriken.  Because of that acquisition, the position by the end of September 2011 was as follows.  It was clear that the exclusive rights of Stoll to acquire, and to sell onwards, the relevant farm machinery from Fabriken, were no longer available to them.  It was clear that those exclusive rights were now in the hands of Kongskilde. 

 

11.     On 30 September 2011, a Director of Stoll wrote to the claimant in the following terms:

 

                    “We regret to advise that the company has been experiencing particularly difficult trading circumstances and despite our best efforts, this has resulted in the company having to cease its operations.  We therefore have no option but to give you notice of the cessation of your employment with the company with immediate effect”. 

 

          In the meantime, Kongskilde was establishing a Division, within that company, for the purpose of carrying out precisely the same activities, in relation to the Fabriken machinery, as the activities which had been the main activities of Stoll.  Accordingly, Kongskilde approached the claimant on 7 October 2011 and arranged a meeting to discuss employing him.  There was a meeting on 11 October 2011.  The outcome of that meeting was that the claimant was offered a job by Kongskilde, which was to commence on 12 October.  It did start on 12 October.  He was paid by Kongskilde from then onwards.  He is still employed by Kongskilde, in that role.  At around the same time, other former employees of Stoll were approached by Kongskilde and were offered jobs with Kongskilde.  In each instance, each of the “new” employees were employed to do broadly the same tasks as they had previously carried out, in relation to the same customer base.

 

12.     By mid-October 2011, the new Division of Kongskilde was in operation, servicing the same customer base as had been serviced by Stoll, in relation to the same types and brand of agricultural machinery. 

 

13.     By mid-October, that work was being carried out for Kongskilde by most of the people who had been employed to carry out that work by Stoll until 30 September 2011. 

 

14.     In October 2011, the claimant applied to the Department (in its role as the statutory guarantor in respect of certain debts) for payments in respect of wages, holiday pay, notice pay and redundancy pay.  The Department refused those applications, on the basis that TUPE applied.

 

The issues (general)

 

15.     The parties who are participating in these proceedings agree that the claimant was dismissed with effect from 30 September 2011.

 

16.     Kongskilde also agrees that that dismissal was an unfair dismissal, within the meaning of the unfair dismissals legislation.  That concession was inevitable because Stoll did not comply with the statutory dismissal procedure provided for in Article 130A of the Employment Rights (Northern Ireland) Order 1996 (which is referred to below as “the Order”).

 

17.     For the purposes of this part of the proceedings (the determination of the liability issues), the participating parties also agreed that, at the time of his dismissal, the claimant was entitled to some wages and some holiday pay, although the amounts of wages and holiday pay due to him, if any, have to be calculated during the course of the forthcoming remedies hearing.

 

18.     The claimant clearly was not given due statutory notice of his dismissal and accordingly he is entitled to compensation for any loss which he has sustained as a result of the failure to provide him with due notice.

 

19.     If the claimant was dismissed because of redundancy, he would be entitled to redundancy pay.  However, any such entitlement would have the effect of eliminating the basic award element of unfair dismissal compensation.  (See paragraph (4) of Article 156 of the Order).

 

20.     It appears likely that the claimant would not be able to enforce any tribunal award against Stoll, because of its financial situation.  However, if Stroll is liable in respect of the claimant’s claims for wages, holiday pay, notice pay and redundancy pay, the claimant is entitled to succeed in his appeals against the Department’s decisions.  That is because of the effect of paragraph (1) of Article 202 and Article 227 of the Order.  (A company which is in administration, and a company which is in creditors’ voluntary liquidation, is a company which is in a state of insolvency within the meaning of the statutory guarantee legislation).

 

21.     At one point in these proceedings, the claimant was pursuing, or was deemed to be pursuing, issues relating to the Service Provision (Change) (Protection of Employment) Regulations (Northern Ireland) 2006.  However, in the course of the main hearing, that aspect of the claimant's case was not pursued.  In light of our conclusions in relation to other aspects of the claimant’s claim, it is unnecessary for us to arrive at any determination in relation to the implications, if any, of the Service Provision Change Regulations in the context of this case.

 

22.     Issues relating to the implications of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPER”) are however at the heart of this case.  Accordingly, we now identify those issues.

 

The issues (TUPER)

 

23.     Both the claimant and the Department make two alternative submissions:

 

          (1)      First, they assert that the relevant entity (the entity to which the claimant was assigned at the time of his dismissal) was already the subject of a relevant transfer, within the meaning of TUPER, at the time of that dismissal.

 

          (2)      Alternatively, they assert that, although that entity was not the subject of a relevant transfer at the time of dismissal, it was the subject of such a transfer shortly thereafter, and that that subsequent relevant transfer was the main reason for the claimant’s dismissal.

 

          For Kongskilde, Mr Sheridan rejects both of those propositions.

 

24.     However, the claimant contends, and Kongskilde accepts, that if either of those propositions is correct, Stoll has no liability in the present proceedings and Kongskilde is liable in respect of wages, holiday pay, notice pay, unfair dismissal and (possibly) redundancy pay.

 

25.     The claimant accepts that, if either of those propositions (the propositions set out at paragraph 23 above) is correct, the claimant’s appeals must be dismissed.  The Department accepts that, if neither of those propositions is correct, the appeals against the Department’s decisions must be allowed.

 

26.     Neither of the paragraph 23 propositions can be correct unless there has been a relevant transfer (within the meaning of TUPER) of the entity to which the claimant was assigned at the time of his dismissal.

 

27.     The first of the paragraph 23 propositions is correct if, and only if, one of the following two situations existed:

 

          (1)      The relevant transfer had already been completed by 30 September 2011.

 

          (2)      The transfer was effected by a series of two or more transactions, and the claimant was employed (by Stoll) and assigned to the relevant entity, immediately before any of those transactions.  (In other words, one of those transactions occurred before 30 September 2011, on that date, or immediately thereafter). 

 

          In this context, see Regulation 3(6) and Regulation 4(3) of TUPER. 

 

28.     In general terms, the effect of paragraph (2) of Regulation 4 of TUPER is as follows. 

 

(1)      On the completion of a relevant transfer, if an employee is within the scope of Regulation 4(1), all of the transferor’s liabilities under or in connection with the relevant contract of employment are transferred to the transferee.

 

(2)      Any act or omission before the transfer is completed (of or in relation to the transferor), in respect of that contract or person, is deemed to have been an act or omission of or in relation to the transferee.

 

29.     A person is within the scope of the Regulation 4(2) rights even if he was not employed in the relevant entity at the time of the transfer, but would have been so employed if he “… had not been dismissed in the circumstances described in Regulation 7(1) …”.  Regulations 4(3) and 7(1) are of significance in the context of the second of the paragraph 23 propositions.

 

30.     Two alternative sets of circumstances are described in Regulation 7(1):

 

          (1)      The employee was dismissed prior to the relevant transfer and the sole or principal reason for his dismissal was the transfer itself.

 

          (2)      The employee was dismissed prior to the relevant transfer and the sole or principal reason for his dismissal was a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.

 

The core issues

 

31.     Accordingly, in light of the foregoing, it is clear that the key issues in this case are as follows:

 

          (1)      Has there been a relevant transfer at all in this case?  (If not, none of the following issues needs to be resolved).

 

          (2)      If there was a relevant transfer in this case, had it completed by 30 September 2011?

 

          (3)      If there has been a relevant transfer in this case, and it had not been completed by 30 September 2011, was it effected by a series of two or more transactions, one of which took place prior to, on, or immediately after 30 September 2011?

 

          (4)      If there has been a relevant transfer, but the situations envisaged in
sub-paragraphs (2) and (3) did not exist, was the main reason for the claimant’s dismissal either:

 

                    (a)      The subsequent relevant transfer itself?

 

                    (b)      A reason connected with that transfer that is not an economic, technical or organisational reason entailing changes in the workforce?

 

Our key liability conclusions

 

32.     We have concluded that there was a relevant transfer of the relevant entity (the entity to which the claimant was assigned immediately prior to his dismissal).  We have not found it necessary to arrive at a conclusion on the question of whether or not that transfer had been completed by 30 September 2011.  We have however concluded that the transfer was effected by a series of transactions, and that the first of those transactions had occurred by 30 September 2011.  We are satisfied that the transfer had completed by mid-October 2011.

 

33.     We now need to explain why we have arrived at the conclusions which are set out at paragraph 32 above.

 

Was there a relevant transfer?

 

34.     What constitutes a relevant transfer, for the purposes of TUPER?  The law on that topic was set out in detail in Cheesman –v- R Brewer Contracts Ltd [2001] IRLR 144. 

 

35.     The participating parties all agreed that we should follow the principles which are set out in Cheesman, and we have done so. 

 

36.     TUPER purports to implement the requirements of the EC Business Transfers Directive (2001/23/EC).  Accordingly, the Regulations have to be construed in light of the requirements of the Directive.

 

37.     The criteria for deciding whether or not a particular transfer is a transfer which falls within the scope of the Directive (and is therefore a relevant transfer for the purposes of TUPER) were explained by the European Court of Justice in Spijkers v Gebroeders Benedik Abattoir CV [1986] ECR 1119). 

 

38.     At paragraph 11 of its judgement in that case, the ECJ stated that the decisive criterion for establishing whether there is a transfer is whether the business in question retains its identity.  At paragraph 12, the Court continued:-

 

                    “Consequently, a transfer of an undertaking, business or part of a business does not occur merely because its assets are disposed of.  Instead it is necessary to consider          …      whether the business was disposed of as a going concern as would be indicated, inter alia, by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.”  

 

          At paragraph 13 the Court continued by stating the following:  

 

                    “In order to determine whether those conditions are met, it is necessary to consider all the facts characterising the transaction in question, including the type of undertaking or business, whether or not the business’s tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred and the degree of similarity between the activities carried on before and after the transfer and the period, if any, for which those activities were suspended.  It should be noted, however, that all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation.”

 

39.     Accordingly, in the circumstances of the present case, we noted the following. 

 

40.     First, the overall question for us is whether the business in which the claimant was employed by Stoll until September 2011 was disposed of, as a going concern, to Kongskilde.  In that context, it is important to assess whether the operation of that business was actually continued or resumed by Kongskilde, with the same or similar activities.

 

          Secondly, in order to determine whether the conditions specified in the last preceding paragraph are met, it is appropriate to consider the following:

 

(1)      the type of undertaking or business;

 

(2)      whether or not the business’s tangible assets, such as buildings and moveable property, were transferred;

 

(3)      the value of its intangible assets at the time of the transfer;

 

(4)      whether or not the majority of its employees were taken over by Kongskilde;

 

(5)      whether or not its customers were transferred;

 

(6)      the degree of similarity between the activities carried on before and after the transfer; and   

 

(7)      the period, if any, during which those activities were suspended. 

 

41.     We think it will be helpful to address each of those factors separately. 

 

42.     First, until September 2011, the essence of the relevant business was that it bought agricultural machinery, of a particular type, from a particular company in Denmark (Fabriken) and sold it on, to agricultural machinery dealers in the United Kingdom and in Donegal.

 

43.     Secondly, the business’s tangible assets were not key to the whole business.  For example, the claimant worked from home, as did a number of other employees of Stoll.  When he was subsequently paid as an employee by Kongskilde, he still worked from home.

 

44.     Thirdly, the most valuable intangible assets of the Stoll business were the list of customers, and the knowledge of previous transactions with those customers.  Those had come into the control of Kongskilde by mid-October 2011. 

 

45.     Fourthly, by mid-October 2011, nearly all of the people who had been employed by Stoll in the relevant business were now employed by Kongskilde.

 

46.     Fifthly, the customer-base of the Stoll business and the customer-base of the relevant division of Kongskilde were practically identical. 

 

47.     Sixthly, the main activities carried on before and after the putative transfer were practically identical. 

 

48.     Seventhly, the relevant activities were not suspended for any period longer than a couple of weeks.

 

49.     Having considered those factors separately, we have not lost sight of the fact that they are merely single factors in the overall assessment which must be made, and that none of those factors can be considered in isolation.  We are satisfied that, in reality, the business carried out by Stoll was resumed by the relevant division of Kongskilde and accordingly we are satisfied that the operation of the relevant Stoll business was continued by Kongskilde, with the same or similar activities. 

 

50.     Against that background, and for those reasons, we are satisfied that there was a relevant transfer, to Kongskilde, of the business to which the claimant was assigned immediately prior to his dismissal.

 

When was the relevant transfer completed?

 

51.     By September 2011, the main function of the relevant entity, to which the claimant was assigned immediately prior to his dismissal, was that it purchased the relevant machinery, and re-sold it to dealers.  It did so, and could only do so, because it had exclusive rights, to purchase and re-sell the relevant machinery, within the relevant sales territory.

 

52.     By mid-October 2011, Kongskilde had acquired those exclusive rights, they had taken on nearly all of the employees who had been assigned to the relevant entity immediately before Stoll stopped operating it, and they had also acquired the customer list.  Accordingly, at the very latest, the relevant transfer was completed by mid-October 2011. 

 

53.     Kongskilde bought a substantial amount of Stoll’s tangible assets (in the form of agricultural machinery which had been bought by Stoll from Fabriken, and which had not yet been sold by Stoll).  They did not buy that stock until 10 November 2011, after Stoll went into administration.  However, we do not regard the purchase of that stock as being of central significance, either in the context of the effecting of the relevant transfer, or in determining the date on which that relevant transfer was completed.

 

54.     This is not a case in which it can accurately be stated that the business can be reduced to the manpower available to it.  Instead, this is a case in which the most important element of the business was the entitlement to acquire the stock from Fabriken (and to sell it onwards) and its second most important element was the manpower.

 

55.     We accept that Kongskilde could have sold the relevant machinery (the types of machinery which had been sold by Stoll) to the former customers of Stoll, during the period from October 2011 onwards, without employing any of those individuals who had been employed in the relevant business by Stoll.  However, it is also true that it was undoubtedly helpful to Kongskilde, in carrying out the relevant work, to have available the services of those who had carried out that work for Stoll prior to the termination of the relevant business activities of Stoll.  We consider that when Kongskilde, in October 2011, took on most of the ex-employees of Stoll, they took on a significant element of the Stoll business. 

 

Was this a multi-transactional transfer and, if so, had one of those transactions occurred by the end of September 2011?

 

56.     Our answer to both of the questions posed in the heading to this part of the Decision is “yes”.

 

57.     The whole purpose of the relevant Stoll business was to buy particular machinery, from a particular manufacturer, and to sell it on to agriculture machinery dealers in the United Kingdom and in Donegal.  By the time of the claimant’s dismissal, the exclusive rights to acquire and sell-on that machinery had ceased to be available to Stoll and had become the entitlement of Kongskilde.  The transaction whereby those rights had transferred was one which had already occurred by the end of September 2011. 

 

58.     By 21 or 22 September 2011, the Fabriken company had been bought by an associated company of Kongskilde and, as a result of that purchase, Kongskilde had acquired the rights to buy and re-sell the relevant machinery and to sell it onwards.

 

Our overall conclusions    

 

59.     We have concluded that there was a relevant transfer, of the relevant entity, from Stoll, to Kongskilde directly, and that that transfer had been completed by mid-October 2011.  We have concluded that the transfer had begun by 30 September 2011.

 

60.     Accordingly, by mid-October 2011, Stoll had ceased to have any liabilities to the claimant in respect of wages, holiday pay, notice pay, redundancy pay or unfair dismissal, and any such liabilities had by then transferred, so as to become the liabilities of Kongskilde. 

 

61.     Because any liabilities of the types which are listed in the last preceding paragraph are not now the liabilities of Stoll, because Stoll had not become formally insolvent (in the sense in which the term “insolvent” is used in the context of the statutory guarantee legislation) by mid-October 2011, and because the paragraph 60 liabilities have now become the responsibilities of Kongskilde: 

 

(1)      The claims against Stoll must be dismissed.

 

(2)      The wages, holiday pay, notice pay and unfair dismissal claims against Kongskilde must be upheld. 

 

(3)      The appeals against the Department’s decisions must be dismissed. 

 

 

The main amendment issues

 

62.     Case reference number 507/12 was presented on 16 March 2012.  When that case was originally presented, the only respondent was the Department and the case at that time consisted only of appeals against the Department’s refusals of the claimant’s applications for payments in respect of wages, holiday pay, notice pay and redundancy pay. 

 

63.     In the Department’s response to that case, it reiterated its reason for the refusal of those applications.  That reason was the Department’s contention that there had been a relevant transfer within the meaning of TUPER.  Subsequently, at the suggestion of the Department, Kongskilde was joined as a respondent to that case. 

 

64.     Since that joinder, case reference number 507/12 obviously has to be treated as incorporating a claim by the claimant against Kongskilde in respect of the subject-matter of his Departmental applications.  Following the joinder, Kongskilde entered a response in case 507/12, on the basis that the claimant was to be regarded as making claims against Kongskilde in respect of wages, holiday pay, notice pay and redundancy pay.  Stoll was never joined as a respondent to case 507/12.

 

65.     Case reference number 1314/12 was presented on 9 July 2012.  The context and reason for the presentation of that case were explained at paragraph 7 of the claim form in that case, in the following terms:-

 

                    “I cross-reference this claim with [claim case reference number 507/12]. 

 

                    On Wednesday 4 July 2012, the morning of the hearing of the above mentioned claim, I was presented by [the Department] with documentation including the administrator’s report (re [Stoll]) and various emails from Kongskilde and other information.  This documentation contained matters of which I was previously unaware.  Arising from this information which has now come to light, further and in the alternative to my previous ET1 already lodged, I wish to present a claim for:-

 

                              1.       unfair dismissal

                              2.       holiday pay

                              3.       unpaid wages

                              4.       pay in lieu of notice

 

                    I wish to present this complaint as although I wish to maintain the position set out in [507/12].  I am advised that the Tribunal may find that my employment was terminated otherwise than by reason of redundancy. 

 

                    As such I wish to protect my position and in these circumstances, I allege that the dismissal was unfair, and that I am due the other monies outlined above.

 

                    My former employer, the first named respondent is insolvent and accordingly I include the [Department] as a respondent.

 

                    I seek an extension of time to present these complaints to the Tribunal on the basis of my discovery of new facts.

 

                    In the alternative, I seek that these claims are included as an amendment to Claim 507/12IT.”

 

          Stoll, Kongskilde and the Department were all named as respondents to case 1314/12. 

 

66.     In case 507/12, the effect of the joinder of Kongskilde, as a respondent, was to effect the deemed amendment of that case so as to add claims against Kongskilde in respect of wages, holiday pay, notice pay and redundancy pay. 

 

67.     In case 507/12, only the claim in respect of redundancy pay was in time.  The other claims had all been lodged outside the primary time limit for such claims. 

 

68.     In case reference number 1314/12, the only “new” claim (the only claim which had not already been made in case 507/12) was the unfair dismissal claim.  That claim was being made for the first time long after the expiration of the relevant primary time limit.

 

69.     Accordingly, both in relation to the wages, holiday pay, notice pay and unfair dismissal claims in case 507/12, and also in relation to the unfair dismissal claim in case 1314/12, it is appropriate to consider whether each claim has been presented within the relevant time limits.  In each instance, the time limit issues are the same:

 

(1)      Was it reasonably practicable to present the claim within the relevant primary time limit?

 

(2)      If not (and only if not), has the relevant claim been presented “within such further period as the tribunal considers reasonable”? 

 

70.     Because of the conclusions which we have reached in relation to the employer’s claims, Kongskilde is the only party which has any practical interest in the outcome of any time limit issues.  Our understanding is that Kongskilde does not strongly assert that any of the main claims (the wages, holiday pay, notice pay, redundancy pay and unfair dismissal claims) against that company should be disallowed because of time limit issues. 

 

71.     That is an understandable position for Kongskilde to take, in view of the following matters.  First, even if the wages, holiday pay and notice pay claims were barred in the industrial tribunal, they would not be time-barred in the County Court.  Secondly, there are strong arguments in favour of the propositions which were set out in the extract from paragraph 7 of the second claim form (as already quoted by us above).

 

72.     Essentially on the basis of the latter propositions, we have decided that both of the time limit issues (as set out at paragraph 69 above) should be resolved in favour of the claimant.  The administrator’s report was not available to the claimant at any time within any of the relevant primary limitation periods.  The question of whether or not there has been a relevant transfer, and if so, the timing of that transfer, are questions which are fact-sensitive, and they involve difficult questions of law.  In those circumstances, we are satisfied that the claimant’s omission, in each relevant instance, to present the claim within the primary time limit, was based on reasonable ignorance, both as to the facts and as to the law, which was such as to render it not reasonably feasible to present the relevant claim within the primary time limit.  The period of delay thereafter was relatively short, and it is explained by the same ignorance which provides the basis for concluding that it was not reasonably practicable to present the claim within the primary time limit.

 

73.     For those reasons, and against that background, we have decided that the claimant should be regarded as having been given leave to amend claim 507/12 so as to include claims against Kongskilde in respect of wages, holiday pay, notice pay and unfair dismissal.   

 

The consultation claim

 

74.     Regulation 13 of TUPER imposes liabilities upon employers to carry out consultation in relation to a relevant transfer.

 

75.     Regulation 15 provides for remedies in respect of any failure to comply with the requirements of regulation 13.  Regulation 15(8) provides that where a tribunal finds a complaint against a transferor under paragraph (1) of that regulation to be well-founded, it must make a declaration to that effect and it may order the transferor to pay appropriate compensation to such descriptions of affected employees as may be specified in the award.

 

76.     Paragraph (9) of regulation 15 provides that the transferee is to be jointly and severally liable with the transferor in respect of compensation payable pursuant to regulation 15(8).

 

77.     No TUPE consultation claim was contained in either of the cases, as originally presented.

 

78.     During the course of a Case Management Discussion which took place in January 2013, Ms Clarke, on behalf of the claimant, announced for the first time that the claimant wished to seek leave to amend his claim form so as to include a TUPER consultation claim.  At that time, by agreement, it was directed that that application for leave would be considered during the main hearing of these proceedings.  Also at that time, again by agreement, it was decided that, if that application for leave was successful, the main tribunal would, on the same day, go on to consider the merits of the consultation claim.

 

79.     Without opposition from Kongskilde, we have decided to treat the claimant’s application for leave to amend as including both an application to include a consultation claim against Stoll, and an application to include a consultation claim against Kongskilde.

 

80.     We refuse the application for leave to amend so as to include the consultation claim against Kongskilde, for essentially the same reasons as those which led to the refusal of a similar application in McCann  v  Vector Facilities Management [2012] NIIT 01248 (Decision issued on 16 February 2012).

 

81.     We have decided to grant leave to the claimant to amend his claim form in case 1314/12 so as to include a TUPER consultation claim against Stoll.

 

82.     During the course of the main hearing, we drew the attention of the parties to an industrial tribunal Decision in Lyttle  v  Bluebird UK Bidco 2 Limited [2013] NIIT 0055.

 

83.     In deciding to grant leave to amend the claim form so as to include the consultation claims against Stoll, we applied the principles which are referred to at paragraph 35 of Lyttle. 

 

84.     In deciding to grant the amendment leave application in relation to Stoll, we took account of the following.  First, Kongskilde’s ability to defend the consultation claim has been in no way diminished as a result of the failure on the part of the claimant to present the claim in a timely manner.  Secondly, for reasons which have already been explained, the TUPE aspect of this litigation came to the forefront relatively late in the day, and a claim for breach of the relevant statutory consultation obligations is one which would reasonably be anticipated by any respondent, in the context of any TUPE claim.  Thirdly, there has been a relatively lengthy delay in announcing an intention to seek leave to present a TUPER consultation claim and this is a factor which is significant, in deciding whether or not to grant leave.

 

85.     Having taken full account of all the matters specified at paragraph 84 above, we have decided that the amendment should be allowed.

 

86.     As Mr Sheridan realistically accepted, in the circumstances of this case, there could be no liability defence, on the merits, to any TUPER consultation claim, if the claimant was allowed leave to present such a claim, and if Kongskilde was liable for Stoll omissions, pursuant to regulation 4 of TUPER.  (In particular, it has not been suggested that any liability defence is available to Stoll of the type which is envisaged at paragraph (2) of Regulation 15 of TUPER).

 

87.     We have decided that the regulation 15 consultation claim against Stoll is well-founded. 

 

Next steps

 

88.     A remedies hearing has been scheduled for 31 May 2013.

 

89.     Obviously, there will be no need for the Department to be in attendance at that remedies hearing.

 

90.     During the course of that remedies hearing, the tribunal will consider the following:

 

          (1)      What amount (if any) is due to the claimant in respect of wages during the period from 30 September 2011 until 12 October 2011?

 

          (2)      What amount (if any) is due to the claimant in respect of accrued holiday entitlements during the period up to 30 September 2011?

 

          (3)      What amount (if any) is due to the claimant as damages in respect of breach of his statutory or other notice pay entitlements?

 

          (4)      What amount (if any) is due to the claimant as compensation in respect of unfair dismissal?

 

          (5)      What amount (if any) should be awarded to the claimant in respect of Stoll’s breach of the TUPER consultation obligations?

 

91.     During the course of the remedies hearing, or afterwards, we will also decide whether or not the claimant was dismissed by reason of redundancy and, if so, we will also decide what amount of redundancy pay is due to him.  (As already indicated at the beginning of this Decision, we have decided to defer the question of liability for redundancy pay until the remedies hearing).

 

 

 

 

 

 

Chairman:

 

Date and place of hearing:     22 February 2013 and 9 April 2013, Belfast.

 

Date decision recorded in register and issued to parties: