Mr S Digpaul v Entrust Datacard Corp and others: 2600725/2018
| Judgment Date | 22 January 2020 |
| Published date | 22 May 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case No: 2600725/2018
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EMPLOYMENT TRIBUNALS
Claimant:
Mr S Digpaul
Respondent:
Entrust Datacard Corp (1)
Datacard Ltd (2)
M D Herzog (3)
Mr X Coemelck (4)
Mr T Ball (5)
Heard at:
Leicester On: 4, 5, 6, 7 & 11 November 2019
Before:
Employment Judge Victoria Butler
Mr ME Robbins
Representation
Mr A Wood
Claimant:
Mr R O’Dair Counsel)
Respondent:
Mr J Braier (Counsel)
RESERVED JUDGMENT
The unanimous Judgment of the Tribunal is that:
1. The Claimant’s claim of unfair dismissal against the 2nd Respondent is not wellfounded
and is dismissed.
2. The Claimant’s claim of automatically unfair dismissal against the 2nd Respondent by
virtue of Regulation 7 of the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (“TUPE”) is not well-founded and is dismissed.
Case No: 2600725/2018
Page 2 of 25
3. The Claimant’s claim that the 1st and 2nd Respondents failed to inform and consult him
in accordance with Regulation 13 TUPE is not well-founded and is dismissed.
4. The Claimant’s claim of indirect race discrimination against the Respondents is not
well-founded and is dismissed.
5. The Claimant’s claim of victimisation against the Respondents is not well-founded and
is dismissed.
REASONS
Background
1. The Claimant was employed by the 2nd Respondent as a Senior Product Manager
until his dismissal on 16 November 2017. He claims the following:
• Unfair dismissal under s.98(2) Employment Rights Act (“ERA”);
• Automatically unfair dismissal by virtue of Regulation 7 TUPE”;
• A failure to inform and consult in accordance with Regulation 13 TUPE:
• Indirect race discrimination – section 19 Equality Act 2019 (“EQA”); and
• Victimisation – s. 27 EQA.
2. He notified ACAS on 15 December 2017 under the early conciliation procedure and
ACAS issued the early conciliation certificates on 29 January 2018. The ET1 was
presented to the Tribunal on 26 March 2018 and the ET3 was submitted on 4 July
2018.
The issues
3. The issues agreed between the parties were as follows:
Dismissal
i. It is agreed that the claimant was dismissed on 16 November 2017.
TUPE – service provision change (“SPC”): relevant transfer ii. What were the
activities carried on by the 2nd Respondent for the 1st Respondent before the 1st
Respondent’s appointment of Mr DePompolo?
iii. Were the activities carried on by the 1st Respondent immediately after that
appointment fundamentally or essentially the same as those carried on by the
2nd Respondent immediately before it?
iv. Before the transfer, was there an organised grouping of employees from the
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