Ms A Apter and others v DDD Ltd (in Administration) and Dendron Brands Ltd: 3307668/2020 and 3307805/2020
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 2023 |
| Date | 03 February 2023 |
| Published date | 23 February 2023 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
| Citation | 3307668/2020 and 3307805/2020 |
Case Numbers: 3307668/2020-3307805/2020
1
EMPLOYMENT TRIBUNALS
Claimants Respondents
Ms A Apter & Others
v
(1) DDD Limited (in Administration)
(2) Dendron Brands Limited
Heard at: Watford
On: In person with the parties present on
30 and 31 January 2023 and, in
private, on 1 and 2 February 2023
Before: Employment Judge Hyams
Members: Ms G Binks, MBE
Mr P Maclean
Representation:
For the claimants: Mr Martin Palmer, of counsel
For the first respondent: Not present or represented
For the second respondent: Mr Michael Salter, of counsel
UNANIMOUS RESERVED JUDGMENT
1. The claimants’ dismissals were not unfair within the meaning of regulation
7(1) of the Transfer of Undertakings (Protection of Employment) Regulations
2006, SI 2006/246 as amended.
2. Accordingly, the second respondent is not liable to meet any of the claimants’
claims, and those claims are dismissed as against the second respondent.
REASONS
Introduction; the claims made by the claimant in this case
1 By a claim form presented on 9 July 2020, a number of claimants (the second
respondent counted them to be 138) made a number of claims arising from the
ending of their contracts of employment with the first respondent. The first
Case Numbers: 3307668/2020-3307805/2020
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respondent among other things manufactured and distributed a range of
healthcare, beauty and pharmaceutical products both locally and
internationally. It owned a number of brands, and it also provided development
and manufacturing services to third parties. The first respondent went into
administration on 28 February 2020 and did not respond to the claims.
Employment Judge Hyams (“EJ Hyams”) conducted a preliminary hearing by
telephone on 17 March 2022 and at that hearing, with the agreement of (1) the
claimants who were present or represented and (2) the second respondent,
listed for hearing on 30 January to 3 February 2023 inclusive a hearing to
determine some key preliminary issues. EJ Hyams stated those issues in his
case management summary which he signed on 30 March 2022, and the
parties accepted that those issues were apt for determination at that preliminary
hearing.
Preliminary matters: the things that were agreed by the parties and the making
by us on 30 January 2023 of an order under rule 36 of the Employment
Tribunals Rules of Procedure 2013
2 At the hearing of 17 March 2022, Mr Salter on behalf of the second respondent
accepted that there had been a transfer within the meaning of the Transfer of
Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, as
amended (“TUPE”), to the second respondent on 5 March 2020 (“the TUPE
transfer”), and that the claimants had not been employed by the second
respondent. The second respondent also accepted that the claims were all
made within the relevant time limits and after the completion of the early
conciliation requirements of section 18A of the Employment Tribunals Act 1996.
Also at the hearing of 17 March 2022, the parties who were present and EJ
Hyams agreed that the claims of two claimants (Ms Apter and Mr Monk) would
be treated as lead claims. On 30 January 2023, we realised that that had been
done otherwise than under rule 36 of the Employment Tribunals Rules of
Procedure 2013 (“the 2013 Rules”), and that such an order was apt. The
parties agreed to the making of such an order, and we therefore made one. The
claims of Ms Apter and Mr Monk are accordingly lead cases, and the claims of
the other claimants are stayed.
The issues which we determined after the hearing of 30-31 January 2023
3 The issues which were agreed by the parties to be apt for determination at the
hearing which we conducted were these.
3.1 When did the TUPE transfer take place? Was it on 5 March 2020 or (for
example) over a period of time, in stages?
3.2 Were the lead claimants assigned to the organised grouping of resources
or employees that was subject to the TUPE transfer?
Case Numbers: 3307668/2020-3307805/2020
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3.3 Were they dismissed in the circumstances stated in regulation 7(1) of
TUPE, namely the sole or principal reason for their dismissals was the
TUPE transfer and there was not an economic, technical or organisational
reason for the dismissal within the meaning of regulation 7(2) of TUPE for
the dismissal?
3.4 If so, did regulation 8(7) of TUPE apply so that neither regulation 4 nor
regulation 7 of TUPE applied to them?
3.5 If the reason for the lead claimants’ dismissals was an economic,
technical or organisational reason within the meaning of regulation 7(2) of
TUPE, then was it (applying regulation 7(3) of TUPE) redundancy or some
other substantial reason?
3.6 If so, then was the dismissal of Ms Apter fair within the meaning of section
98(4) of the Employment Rights Act 1996?
3.7 Were there special circumstances within the meaning of regulation
15(2)(a) of TUPE which rendered it not reasonably practicable to comply
with the duties to (1) organise an employee representative election within
the meaning of regulation 14 of TUPE and (2) consult in accordance with
regulation 13 of TUPE?
3.8 If so, then did either respondent take “all such steps towards [the]
performance [of the relevant duty] as were reasonably practicable in those
circumstances”?
3.9 If the answer to either of the preceding questions is “no”, what award
should the tribunal make under regulation 15(7) of TUPE?
3.10 Were there special circumstances within the meaning of section 188(7) of
the Trade Union and Labour Relations (Consolidation) Act 1992
(“TULRA”) which rendered it not reasonably practicable for the first
respondent to comply with the duties imposed by section 188(1A), (2) or
(4) of that Act?
3.11 If so, then did the first respondent take “all such steps towards compliance
with [the relevant duty] as [were] reasonably practicable in those
circumstances”?
3.12 If the answer to either of the preceding questions is “no”, what award
should the tribunal make under section 189(2) of TULRA?
The treatment of the above issues by the parties and hence us
4 In fact, both parties (treating the claimants as one party and the second
respondent as the other party) gave evidence in relation only to the question of
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