Mr Daniel Murphy v Sunrise Records and Entertainment Ltd: 3314197/2019
| Judgment Date | 15 March 2020 |
| Published date | 18 June 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case No: 3314197/2019
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EMPLOYMENT TRIBUNALS
Claimant: Mr Daniel Murphy
Respondent: Sunrise Records & Entertainment Limited
HEARD AT: Cambridge: 12 March 2020
BEFORE: Employment Judge Michell
REPRESENTATION: For the Claimant: Mr Oliver Isaacs (Counsel)
For the Respondent: Mr P Chadwick (consultant)
RESERVED JUDGMENT
1. The claimant’s unfair dismissal claim against the respondent has no reasonable
prospect of success, and is struck out pursuant to rule 37 of the Employment
Tribunals (Constitution and Rules of Procedure) Regulations 2013.
2. The claim is dismissed.
REASONS
BACKGROUND
1. The claimant was employed by HMV Retail Ltd (“HMV”) as an assistant manager at
its Stevenage store from 22 January 2009 until his dismissal with a payment in lieu
of notice (“PILON”) on 24 January 2019. Following completion of the early
conciliation process, he brought a claim against both HMV and the above-named
respondent, in which he asserted that his dismissal was unfair.
2. The claim against HMV was rejected by the tribunal in April 2019, on the basis of non-
compliance with the early conciliation process in respect of (just) HMV.
Case No: 3314197/2019
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3. Two preliminary hearings followed. In October 2019, today's hearing was listed for a
determination in relation to the claimant’s status under the TUPE 2006 Regulations
(TUPE”).
4. At that October 2019 preliminary hearing, a specific issue to be determined today was
said to be “did the provisions of TUPE… apply to the claimant’s employment with
HMV retail limited?” That wording was a little nebulous (and, at that stage, the
claimant’s case under TUPE was still unclear).
5. However, at today's hearing, the representatives helpfully clarified and agreed the
following points, and issues for determination:
a. There had been a TUPE transfer of all HMV's staff working at the Stevenage
store to the respondent (which was incorporated on 4 January 2019) on 5
February 2019.
b. The claimant was not in fact still assigned to the undertaking which transferred
at the point of transfer, because of his dismissal by HMV on 24 January 2019.
(Otherwise, he would also have transferred.)
c. The claimant should be deemed as having been assigned to that undertaking
pursuant to regulation 7(1) of the TUPE regulations if the sole or principal
reason for his dismissal by HMV was the transfer.
d. In such circumstances, the dismissal would be automatically unfair.
e. Hence the claim stood or fell on the issue of what was the sole or principal
reason for the claimant’s dismissal. If it was not the reason proscribed by
regulation 7(1) of TUPE, the claim must be dismissed for want of reasonable
prospects of success. Otherwise, the claim could proceed against the
respondent as transferee.
6. The claimant had previously raised arguments at the 2019 preliminary hearings in
relation to his appeal and certain pension payments. Mr Isaacs clarified that these
arguments were not pursued, in the light of the content of the witness statement of
Ms Breslin.
7. I was referred to various pages in a bundle comprising some 222 pages. I also heard
evidence from the claimant, Caroline Bartlett (HR manager of the respondent) and
Kathleen Breslin (Head of HR). Mr Butler, the ‘decision maker’ referred to below, did
not give evidence. He left the respondent’s employment some time ago.
8. All witnesses gave their evidence thoughtfully and candidly. In each case, where
concessions on the facts should sensibly be made, they were made. I was particularly
impressed by Ms Bartlett’s evidence, which was clear and cogent.
FACTUAL FINDINGS
9. The claimant was absent from work from July 2018 and until his dismissal in January
2019. His GP reported in July 2018 that he was suffering from “low mood and
emotional distress which has been precipitated by some recent life events”.
Case No: 3314197/2019
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10. As part of the respondent’s standard procedures for dealing with absences from work,
a meeting was held on 11 September 2018 between the claimant and his regional
manager, Mr Butler.
11. The respondent summarised what happened at that meeting in a letter dated 1
October 2018. Amongst other things, the letter records issues which the claimant said
he had with a text message sent to him from a female colleague and erstwhile friend
(“B”). It also notes that the claimant had indicated he did not want to return to his role
at Stevenage whilst B was still there, and instead wanted to move to another store -
but not in a role which was inferior to his current assistant manager position. It was
explained to him in the letter that “a return to work in the foreseeable future in some
capacity was required to avoid your contract of employment being at risk”. It was
also confirmed to the claimant that “dismissal on grounds of ill health might be a
possibility” in such circumstances- albeit it was hoped he would be able to return to
work.
12. The claimant was seen by occupational health on 2 October 2018. In report dated 11
October 2018, the occupational health physician opined that he did not think the
claimant “will be returning to work in his current role in the near future”. He also
observed “the issue with him returning to his current role relates to individuals
currently employed there [i.e. B]. Were they not working there then he would be able
to return without any restrictions”.
13. A formal review meeting was proposed by the respondent for 30 October 2018. In the
invitation email dated 23 October 2018, Mr Butler explained that “the outcome of the
hearing … could include your dismissal on grounds of ill health”.
14. The 30 October 2018 meeting was chaired by Mr Butler. At the meeting, the claimant
indicated in response to Mr Butler’s query that he was not interested in mediation with
B, “because at no point has she ever tried to mend our personal friendship and work
relationship”. Mr Butler asked him to think further about mediation, to which the
claimant responded: “I will, but I don't think that my opinion will change”. (In fact, at
no point thereafter did the claimant change his mind as regards the potential benefits
of mediation.)
15. Mr Butler was at pains to explain to the claimant that “part of the long term absence
management policy is that if there is no foreseeable return to work for the employee
or, in this case, there is not a suitable alternative role for you to be moved to, then
one option HMV may need to consider is your dismissal for incapacity on grounds of
ill health”. Mr Butler also invited the claimant to consider various vacancies in other
stores. He also explained to him “should you not accept one of these vacancies or
mediation I will write to you outlining my decision based on the information to hand
and what we have discussed today”.
16. The claimant duly responded to Mr Murphy on 9 November 2019, explaining that he
did not want to accept any of the alternative roles as “I have done nothing to warrant
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