Mr A Gallagher v Ponticelli UK Ltd: 4107416/2020
| Judgment Date | 23 August 2021 |
| Citation | 4107416/2020 |
| Date | 23 August 2021 |
| Published date | 07 September 2021 |
| Court | Employment Tribunal |
| Subject Matter | Transfer of Undertakings |
E.T. Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
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Case No: 4107416/20 (A)
Held on 21 June and 6 and 19 August 2021
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Employment Judge J M Hendry
Members Ms D McDougall
Mr A Atkinson
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Mr A Gallagher Claimant
Represented by
Mr M A S Briggs,
Solicitor
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Ponticelli UK Limited Respondent
Represented by
Mr T Hadden,
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Solicitor
JUDGEMENT OF THE EMPLOYMENT TRIBUNAL
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The unanimous decision of the Tribunal is:
1. That following the transfer of the Claimant’s contract of employment to
the Respondent company on the 1 May 2020 the Claimant became
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entitled to participate in a Share Incentive Scheme of substantive
equivalence or comparable value to the Share Incentive Scheme
operated by his former employers Total Exploration and Production UK
Limited and further,
2. That the Claimant’s application for a reference under Section 11 of the
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Employment Rights Act 1996 is well founded and the Tribunal declares
S/4107416/2020 Page 2
that the terms and conditions of his employment should reflect that
obligation to provide him with a Share Incentive Scheme of substantive
equivalence to the Total E&P UK Share Incentive Plan on the terms as
set out in the Explanatory Booklet dated 2013.
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REASONS
1. The Claimant seeks a reference under section 11 of the Employment Rights
Act 1996 (“ERA”) for the determination under section 12(2) (following a
relevant transfer under TUPE to the Respondent on 1 May 2020) that he is
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entitled to be a member of a Share Incentive Plan (SIP) equivalent to the SIP
of which he was a member prior to the transfer of his employment. The
transferors were Total Exploration and Production UK Ltd (“TEPUK”).
2. In this case the facts were not in dispute rather the case turned on the
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application of the law to those facts.
Issues
3. There were a number of issues for the Tribunal to consider. The Tribunal had
to decide whether or not the Claimant was personally barred from insisting
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on the reference, the nature of his rights under the transferor’s SIP and
whether these were capable of transferring under TUPE because of the
nature of that scheme, whether it was exhausted prior to the transfer, whether
the Claimant was properly entitled to challenge his statement of terms and
conditions to engage Section 11 of the Employment Rights Act (‘‘ERA’’).
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4. It was accepted that the Claimant’s employment transferred under TUPE from
Total Exploration and Production UK Limited (TEPUK) to the Respondent on
1 May 2020. It was also accepted that the Claimant was a member of
TEPUK's share plan, namely the Total E&P UK Limited Share Incentive Plan
(the ‘'SIP'’).
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S/4107416/2020 Page 3
5. It was accepted that the Claimant’s membership of the SIP terminated on 1
May 2020 and that a payment of £1,855 was made to him in the Respondent’s
June 2020 payroll purportedly in satisfaction of any rights to participate in a
SIP.
The Claimant's section 1 statement
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6. The basis for the Claimant’s position was that his contract of employment
with TEPUK prior to the TUPE transfer entitled him to participate in the SIP
on the terms set out in the document titled “Total E&P UK Limited Share
Incentive Plan Explanatory Booklet” dated October 2013 (“the 2013 terms”),
This was the basis of the scheme offered and accepted by him and others.
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The terms of the offer were communicated to the Claimant by way of email
attachment dated 13 July 2018. The text of the email and the presentation
made prior to him joining constituted in the Claimant’s view an offer to the
Claimant to participate in the scheme. This offer was accepted by him and,
as such, validly varied his contract of employment to include these terms.
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7. The Respondent denied that the Claimant’s contract of employment entitled
him certain benefits under the SIP. The Respondent asserted that there was
no reference to the SIP in the Claimant’s written statement of terms. It was
their position that it was a separate right. The Claimant asserted that Clause
16 of the written statement of terms incorporated certain policies and
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procedures into his contract of employment. While the 2013 terms are not
expressly listed as an example of one such policy, the list of examples is
expressly stated as being non-exhaustive. It was the Claimant’s position that
the 2013 terms constitute one such policy and have contractual effect.
8. The Respondent asserted that the SIP was governed by the Total E&P
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Limited Share Incentive Plan Partnership Agreement (the 'SIP Agreement'),
which was entered into between the Claimant, TEPUK, and EES Trustees
Limited (the 'Trustees'). The SIP Agreement is subject to the SIP, which in
turn is governed by the Trust Deed and Rules. The Claimant participated in
the SIP by entering into the SIP Agreement on a voluntary basis.
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