Duncan Ferguson and Others v Astrea Asset Management Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Judge Shanks |
| Neutral Citation | UKEAT/0139/19/JOJ |
| Court | Employment Appeal Tribunal |
| Subject Matter | Transfer of Undertakings,Not landmark |
| Date | 15 May 2020 |
| Published date | 15 May 2020 |
Copyright 2019
Appeal No. UKEAT/0139/19/JOJ
EMPLOYMENT APPEAL TRIBUNAL
ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON, EC4A 1NL
At the Tribunal
On 25 and 26 February 2020
Judgment handed down
On 15 May 2020
Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)
1) DUNCAN FERGUSON
2) JOHN KEVILL
3) ANDREW LAX
4) BYRON PULL
APPELLANTS
ASTREA ASSET MANAGEMENT LTD
RESPONDENTS
JUDGMENT
UKEAT/0139/19/JOJ
APPEARANCES
For the Appellants MR DAVID READE
(One of Her Majesty’s Counsel)
MS CHARLENE ASHIRU
(Of Counsel)
Instructed by
Reed Smith LLP
The Broadgate Tower
20 PRIMROSE Street
EC2A 2RS
For the Respondents MR SIMON DEVONSHIRE
(One of Her Majesty’s Counsel)
DANIEL ISENBERG
(Of Counsel)
Instructed by
Linklaters LLP
One Silk Street
London
EC2Y8HQ
UKEAT/0139/19/JOJ
-1-
A
B
C
D
E
F
G
H
SUMMARY
TRANSFER OF UNDERTAKINGS
The Claimants were directors of Lancer and beneficial owners of Lancer’s holding company;
Messrs Ferguson and Kevill were also employees of Lancer and Messrs Lax and Pull were
employed by c ompanies which t hey controlled which contracted their services to Lancer; there
were seven other Lancer employees. Lancer’s sole business was m anaging the Berkeley Square
Estate on behalf of the owners under a management agreement.
The owners gave 12 months’ notice to terminate the agreement and appointed a new company to
manager the Estate, Astrea. There was no dispute that this involved a TUPE transfer from Lancer
to Astrea.
Shortly before the tra nsfer, the Claimants arranged for their em ployment contracts to be
substantially improved to provide for guaranteed bonus payments and generous new termination
payments. The EJ found that these changes were made “by reason of” the anticipated transfer
and had no legitimate commercial purpose for Lancer but were designed to compensate the
Claimants for loss of Lancer’s business, dishonestly taking undue advantage of TUPE by
awarding themselves remuneration knowing it would be paid at the expense of Astrea. Astrea
dismissed Messrs Ferguson and Kevill on or shortly after transfer and did not accept that Messrs
Lee and Pull transferred under TUPE or alternatively also dismissed them.
The Claimants brought claims against Astrea based on TUPE for unfair dismissal and contractual
termination payments and for “compensation payments” for breach of reg 13(4) of TUPE under
which Astrea was required to provide “measures” information to Lancer. Foll owing a five-day
hearing the EJ found inter alia:
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