Atalian Servest Ltd v Bidvest Noonan (UK) Ltd: 2200381/2022
| Jurisdiction | England & Wales |
| Judgment Date | 03 January 2024 |
| Date | 03 January 2024 |
| Published date | 06 February 2024 |
| Court | Employment Tribunal |
| Subject Matter | Transfer of Undertakings |
| Citation | 2200381/2022 |
Case No: 2200381/2022
1
EMPLOYMENT TRIBUNALS
Claimant: Atalian Servest Limited
Respondent: Bidvest Noonan (UK) Limited
Heard at: London Central (via CVP) On: 1 December 2022
Before: Employment Judge Varnam
Representation
Claimant: Mr N Siddall KC
Respondent: Mr B Cooper KC
JUDGMENT
1. The Claimant’s claim under regulation 12 of the Transfer of
Undertakings (Protection of Employment) Regulations 2006 is dismissed.
REASONS
Introduction
1. This matter was listed for a preliminary hearing to decide whether the
Claimant’s claim was one that the Tribunal had jurisdiction to consider.
2. I was provided with a statement of facts agreed by both parties, which I
reproduce almost verbatim (but with minor deletions of things such as the
full registered addresses of the parties) as follows:
(1) There was a service provision change (within the substantive
definitions in regulation 3(1)(b) of the Transfer of Undertakings
(Protection of Employment) Regulations 2006 (‘TUPE GB’) and
regulation 3(1) of the Service Provision Change (Protection of
Employment) Regulations (Northern Ireland) 2006 (‘SPC NI’), but
subject to the issue of territorial jurisdiction), which took place on 25
October 2021.
Case No: 2200381/2022
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(2) The service provision change was from the Respondent to the
Claimant.
(3) It is accepted that this was a relevant transfer for purposes of the
substantive definition in regulation 2(1) TUPE GB (subject to the issue
of territorial jurisdiction).
(4) The relevant transfer was the transfer of 265 employees based in
Northern Ireland who were part of the organised grouping of
employees carrying out cleaning activities for the client (Tesco) or
attached to that organised grouping of employees (‘Transferring
Employees’).
(5) The relevant transfer arose out of a contract between the Claimant and
Tesco to provide cleaning, security and catering services for
approximately 350 Tesco sites across the United Kingdom. That
contract was formed in England and is governed by English law.
(6) All Transferring Employees were employed by the Respondent. Their
written statements of terms and conditions refer to Great British
statutory provisions such as the Employment Rights Act 1996, Working
Time Regulations 1998, and the Health and Safety at Work Act 1974.
(7) All the activities that transferred from the Respondent to the Claimant
were carried out across 36 stores and an office all of which were based
in Northern Ireland only.
(8) The Claimant took over the contract from the Respondent to provide
cleaning services to these 36 stores and office in Northern Ireland.
(9) The Respondent’s registered office is situated in England. The
Claimant’s registered office is situated in England.
(10) The Respondent carries on business in (amongst other locations)
England and Wales and Northern Ireland.
(11) The Employee Liability Information (‘ELI’) which is the subject of the
claim was provided via e-mail from the Respondent's employee in
Dublin to the Claimant’s employee in England.
(12) The Claimant provided information to the Respondent relating to
the Transferring Employees; the Claimant alleges that the Respondent
failed to comply with regulation 11 of TUPE GB. The Claimant disputes
whether all information was provided and questions the accuracy of
some details provided.
(13) The Claimant both commenced and completed early conciliation via
ACAS on 24 January 2022 and presented its claim to the Employment
Tribunals in England and Wales on the same date.
3. The Claimant’s ET1 (which, as noted above, was issued on 24 January
2022, which was the last day of the period of three months beginning with
the date of the transfer of the Transferring Employees) asserts that there
was a service provision change as defined in regulation 3(1)(b)(ii) of TUPE
GB. It goes on to assert that various ELI, required to be provided under
Case No: 2200381/2022
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regulation 11 of TUPE GB, had not been provided. Based on this, a claim
based on regulation 12 of TUPE GB (the text of which is quoted below) is
asserted. There is no reference to SPC NI in the ET1.
4. By its ET3, the Respondent denied any breach of its obligations to provide
ELI. More pertinently for present purposes, however, it asserted that, by
issuing proceedings in a Great British Employment Tribunal
1
relying on
TUPE GB, the Claimant had commenced proceedings in the wrong forum.
The Respondent’s position is that the Claimant should have commenced
proceedings in the Northern Ireland Industrial Tribunals, relying on SPC
NI.
5. On 15 November 2022, Employment Judge Khan directed that there
should be a preliminary hearing to determine the following issue:
Whether the Tribunal has jurisdiction to hear this claim under
[TUPE GB] given that the relevant transfer took place in Northern
Ireland?
6. Against the background of the facts set out above, I have been assisted by
extensive written and oral arguments from Mr Nicholas M Siddall KC on
behalf of the Claimant, and from Mr Ben Cooper KC on behalf of the
Respondent.
7. Oral argument consumed almost the entire day, and did not conclude until
around 4.40pm. In the circumstances, I reserved my decision, which is
hereby delivered.
8. Before turning to set out my conclusions, I express my profuse apologies
to both parties for the unacceptable delay in issuing this judgment. This
has arisen from circumstances connected with my own professional
workload, which has proven considerably greater than anticipated in the
period between the hearing and the completion of this judgment. Given the
evident importance of this matter to both parties, I have also been keen to
review all of the important authorities in some detail, which has not been a
quick task to perform.
Relevant Law
9. I begin by setting out my summary of the statute and case law. Much of
this is uncontentious. Some of the more straightforward contentious
questions of law that were argued before me are also addressed in this
summary of the law. The most significant questions, and those bearing
directly on the resolution of the question of jurisdiction identified by EJ
Khan, are addressed separately.
1
Where, in the remainder of this judgment, reference is made to the ‘Employment Tribunal’, this
should be understood to refer to employment tribunals existing in Great Britain pursuant to the
Employment Tribunals Act 1996, although I will also use the expression ‘Great British
Employment Tribunal’ from time-to-time, particularly where it is referred to in close proximity to
the Northern Irish Industrial Tribunal. At times, I also use the expression ‘this Tribunal’; it should
be obvious that when doing so I am also referring to the Great British Employment Tribunal.
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