V Clark v Kim Middleton & Anor

This appeal concerns aspects of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) relating to the duties of transferors and transferees to consult and inform. I will start by setting out the particular individual Regulations that are relevant to this appeal, beginning with Regulation 13:

Regulation 13A provides that a microbusiness employing fewer than ten employees is not obliged to invite the employees to elect appropriate representatives if none exist, but may instead proceed as if each employee was such a representative. It was common ground that this applied in the present case. Accordingly, I can pass over Regulation 14, concerning the election of employee representatives. Regulations15 and 16 read:

Regulation 16A provides for an extension of time to present a claim, to facilitate early conciliation, in equivalent terms to provisions made in other instruments in relation to most other claims in the employment tribunal.

The claimant in the tribunal, Ms Clark, began working in 2015 for a business run by Mrs Middleton as a sole trader, under the name Black Dog Hydrotherapy, which provided hydrotherapy treatment for injured dogs. As of 2019 there were only five employees, including the claimant. Another employee at that time was known then as Janet Slade-Andrews, and that is how the tribunal referred to her, as shall I.

As of midnight on 30 September 2019, the business was transferred to a limited company, Black Dog Hydrotherapy Limited. The tribunal referred to the company as “Black Dog”. I will refer to it as “BDHL”. BDHL had been incorporated on 19 September 2019 by Mrs Slade-Andrews. It was common ground that this transfer amounted to a relevant transfer as defined in TUPE Regulation 3. The claimant accordingly initially transferred into the employment of BDHL. But there was subsequently a breakdown in the relationship and she resigned.

On 21 February 2020, having obtained ACAS early conciliation certificates in respect of both Mrs Middleton and BDHL, the GMB trade union presented the claimant’s claim form to the tribunal. The claim form identified the first respondent as BDHL and the second as Mrs Middleton, but the grounds of claim put them the other way around. The tribunal treated Mrs Middleton as the first respondent and BDHL as the second respondent. I shall continue to refer to each of them by name.

In her grounds of claim, the claimant set out her case that Mrs Middleton had failed to comply with her obligations to inform and consult under Regulations 13 and following of TUPE. She also gave her account of her dealings post-transfer with Mrs Slade-Andrews and her husband, in particular in relation to the tabling of a proposed new contract of employment to which the claimant objected and other matters. She went on to give an account of her resignation and its aftermath. The grounds stated that she was bringing claims against BDHL for wages, holiday pay and unfair dismissal.

In the final paragraph 26, under the heading “Protective Award”, it was stated:

Mrs Middleton’s grounds of resistance gave her account of matters. It asserted that, prior to the transfer, she had complied with her duties to inform and consult. At paragraph 19 she wrote:

BDHL’s response document gave its account of matters, both before, and in rather more detail after, the transfer. It defended the claims for wages, holiday pay and unfair dismissal. Its final paragraph under the heading “Protective Award”, paragraph 21, stated:

A separate claim was presented by another employee who had transferred to BDHL, against BDHL only. On 14 April 2020, there was a case management preliminary hearing (PHCM) held in relation to both claims. The claimant was represented by Mr Sharples of GMB, who is a solicitor. Her former colleague was represented by another solicitor. Mrs Middleton was in person and BDHL was represented by counsel. The tribunal identified the common ground that both claimants had worked for Mrs Middleton, that there was a relevant transfer from her to BDHL on 1 October 2019 and that the business was a microbusiness. The claimant’s claims were identified as including a claim under Regulation 15 that R1 failed to inform and/or consult her as to the transfer. Attached to the minute was a list of issues that had been agreed in relation to the claimant’s claim. In relation to the Regulation 15 claim, these were set out as follows:

The directions indicated that the cases of the claimant and her former colleague would be listed for hearing together. However, at some point before the full merits hearing, the claimant’s former colleague settled and withdrew her claims against BDHL.

On 31 July 2020 a settlement was concluded between the claimant and BDHL through the auspices of ACAS. The claimant was represented in that process by Mr Sharples and BDHL by a solicitor. On 31 July 2020 Mr Sharples emailed the tribunal, copying in BDHL’s solicitor. The body of the email read as follows:

On 17 August 2020 the tribunal promulgated a judgment of EJ Deeley reading as follows:

The full merits hearing took place at Leeds on 18 and 19 August 2020 before Employment Judge Wade, Miss Y Fisher and Mr M Elwen. The written judgment and reasons were promulgated on 11 September 2020. The decision identifies the parties as the claimant and Mrs Middleton. It records that the claimant was represented by Mr Sharples and Mrs Middleton by a solicitor appearing pro bono – Mrs Gray. The judgment was expressed as follows: “The claimant’s claim for a 13 week protective award is dismissed.”

I pause to observe that “protective award” is a term used in the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of awards made arising from the duty of collective consultation and information-giving in relation to collective redundancies. It is not actually a term used in TUPE, but it is clear that the tribunal meant by this expression to refer to an award arising from the Regulation 15 complaint.

Mr Sharples accepted before me that Mrs Slade-Andrews attended the full merits hearing only in the capacity of a witness for Mrs Middleton. Indeed, he told me that she gave her evidence on day one and it was then indicated that she would not be returning on day two, and she did not do so.

The tribunal opened its written reasons with the following:

The tribunal noted that it was accepted that Regulation 13A applied. It set out Regulation 15. It referred to paragraph 19 of Mrs Middleton’s grounds of resistance and observed that “[s]he had therefore given the requisite notice pursuant to paragraph 15(5) and Black Dog was, in any event, a party.” At paragraphs 7 – 9 the tribunal said:

The tribunal noted that the witnesses were the claimant, Mrs Middleton and Mrs Slade-Andrews, who, as I have noted, appeared as a witness for Mrs Middleton. As to the facts the tribunal found that, come the spring of 2019, Mrs Middleton told Mrs Slade-Andrews and other employees that she (Mrs Middleton) wished to retire from September; and there was a very firm expectation that Mrs Slade-Andrews and her husband would be taking over the undertaking. I will set out the next few paragraphs of the tribunal’s findings of fact in full:

The tribunal found that there was no written sale and purchase agreement and indeed no cash changed hands. There was simply an inventory of assets drawn up and a note made of the number of booked sessions which Mrs Slade-Andrews would be responsible for delivering following the transfer. The tribunal continued:

The tribunal further found as follows:

The tribunal went on to find that the new contracts removed rights to two weeks’ full sick pay and to paid breaks, and they varied provisions relating to hours. It found that Mrs Slade-Andrews had proposed as early as April 2019 cutting one member of staff’s hours, and that reducing hours was clearly envisaged by her before the transfer date. It added:

The tribunal rejected Mrs Slade-Andrews’ evidence that contract changes were not envisaged pre-transfer. It found that there was a wealth of evidence of that and that all the changes were envisaged before the transfer date. The rationale, it said, was clear. Whereas Mrs Middleton had run the operation as a hobby, it was now to be run for profit. The tribunal continued:

In the section dealing with the law, the tribunal included the following:

In the concluding section, the tribunal found that the claimant was informed of the date of, and reason for, the transfer by Mrs Slade-Andrews, effectively on behalf of Mrs Middleton, but that BDHL was only incorporated at the eleventh hour. Although there may have been an expectation that the transfer would be to a limited company, the fact that the transferee would be BDHL was not communicated to the claimant or her colleagues pre-transfer. I will set out the concluding paragraphs of the tribunal’s decision in full:

There are four grounds of appeal, all of which were permitted to proceed to this hearing. Mrs Middleton put in an answer indicating that she intended to resist the appeal relying on the tribunal’s reasons. BDHL’s answer indicated that it too resisted the appeal, relying on the tribunal’s reasons, but asserted also that BDHL had “reached a commercial settlement” with the claimant prior to the tribunal hearing as a result of which the tribunal could not make a judgment on the merits of the case against BDHL. There was an accompanying letter which indicated that BDHL was not in a position to appear or be represented at the EAT’s hearing.

In the run-up to the EAT’s hearing, Mrs Middleton sent in a short skeleton and indicated that she would not be attending or represented. This document reiterated, in summary, aspects of her case that she had in fact complied with her duty to consult and had given as much information as she had. However, she admitted that she did not inform employees of the identity of BDHL, but she submitted that they all knew that Mrs Slade-Andrews would be forming a limited company.

A document was sent to the EAT by BDHL in late September 2021 making a number of submissions. It submitted that, by virtue of what it called the out-of-court settlement and the withdrawal, and/or having regard to applicable time limits, it was not now open to the claimant to seek to pursue further matters against Black Dog. It indicated that a further skeleton argument would follow in October, but in fact none was received. For the claimant, a skeleton argument was tabled by Mr Sharples, together with a hearing bundle and authorities. I heard oral submissions from him.

In light of the references made by BDHL to the ACAS COT3, I directed Mr Sharples to provide me with a copy of it, but I note that its terms are confidential and that the tribunal was not provided with a copy, although it plainly was aware of the fact that a settlement had been reached between the claimant and BDHL.

Ground one contends that the tribunal erred at paragraph 38 in stating that the claimant could have brought a complaint directly against BDHL. That this was wrong in law, submitted Mr Sharples, was clear from the EAT’s decision in Allen v Morrisons Facilities Services Limited [2014] IRLR 514. In that case, it was held that Regulation 13(1) admits of a claim, in respect of a given affected employee or employees, only against their employer at the time when the failure of compliance is said to have occurred. So a claim by or in respect of employees who pre-transfer were employed by the transferor, in respect of the duties which it owed in respect of them, can be brought only against the transferor. The fact that those employees may later have become employed by the transferee does not enable that claim to be brought, or brought additionally, against it.

Further, there is no freestanding right to bring a claim against the transferee complaining of a failure by it to provide information to the transferor as required by Regulation 13(4). It is only if the transferor successfully relies on such a failure, so as to defend a claim against it of non-compliance with Regulation 13(2)(d), that the transferee’s failure can give rise to an award in favour of affected employees against the transferee. The claimants in Allen having withdrawn their Regulation 13 claims against the transferor in that case, had thereby cut off their only route to an award against the transferee arising from a failure by it to comply with Regulation 13(4).

I pause to observe that Allen was concerned solely with an attempt to obtain an award against the transferee in that case, arising from a failure by it to comply with Regulation 13(4), which had led in turn to a failure by the transferor to comply with Regulation 13(2)(d). It should be noted that there is also a route under Regulation 15(9) by which a transferee will be jointly and severally liable for any other failure by a transferor to comply with its duties. But that route too is parasitical on there being some relevant successful claim against the transferor.

As an isolated proposition, what the tribunal says in the second sentence of paragraph 38 is not wrong. Regulation 15(7) does make provision for an award to be made against a transferee. But that is because transferees, as well as transferors, have obligations under Regulation 13 in respect of their own affected employees; and, in an appropriate case, a claim can be brought against a transferee who is said to have breached those duties.

However, Mr Sharples’ point was that what the tribunal meant in paragraph 38, read as a whole, was that Regulation 15(7) would have given the present claimant a direct route to pursue her Regulation 13 complaint against the transferee. That this was the tribunal’s meaning was apparent from its later observations at paragraph 53. That proposition was wrong, said Mr Sharples, because, as the claimant was an employee of Mrs Middleton at the relevant time, it was only Mrs Middleton who had a duty to comply with Regulation 13 in respect of her; and it was Regulation 15(8), not Regulation 15(7), that provided for the claimant’s potential remedies in respect of that complaint.

I agree with Mr Sharples that the tribunal erred in this regard. It did occur to me that perhaps the tribunal thought that it would have been an option for the claimant to present a Regulation 13(1) complaint against BDHL, alleging a failure by it to comply with the duty to consult or inform her about proposed transfer-connected measures, occurring in point of time following her becoming its employee post-transfer. But if that was what the tribunal was thinking, that would have been erroneous too, as no such duty is imposed by Regulation 13: see in particular Amicus v City Building (Glasgow) LLP [2009] IRLR 253.

I will return presently to what may or may not be the significance of the error on the part of the tribunal correctly identified by ground one.

I turn to ground two. This asserts that the tribunal was wrong to conclude that the effect of the dismissal upon withdrawal in respect of BDHL was that BDHL was released from the proceedings so that it could not any longer be the subject of an award under Regulation 15(8)(b).

Mr Sharples’ skeleton relied once again upon Allen. The claimant had not, and could not have, brought, a complaint against BDHL of non-compliance with Regulation 13. Her right to a remedy arising from BDHL’s non-compliance with Regulation 13(4) arose from Mrs Middleton’s successful defence of the Regulation 13(1) complaint in respect of her obligation under Regulation 13(2)(d). It was not possible for the withdrawal, or the judgment, to bite on a claim which the claimant had not brought. She could only have been precluded from asserting that remedy, had she compromised or abandoned her Regulation 13 claim against Mrs Middleton, or had Mrs Middleton abandoned her defence relying on BDHL having failed to comply with Regulation 13(4). But neither had happened. To the contrary, the withdrawal and judgment both confirmed that theRegulation 13(1) complaint against Mrs Middleton was maintained; and she, for her part, maintained her defence based on BDHL’s failure to comply with Regulation 13(4), which indeed ultimately succeeded.

As to that, it seems to me that Allen indeed establishes that there is no freestanding right for a complainant to initiate a complaint seeking an award against a transferee on account of a failure to comply with Regulation 13(4), and that such an award may only potentially arise where there is a claim against a transferor in respect of which the transferor relies on that defence. But it does not in my view follow that, once there has been such a complaint instituted against a transferor, and such a defence has been raised by it, it is not then possible for a complainant to compromise or relinquish the potential right to receive such an award from the transferee.

In my judgment, it is possible for that to happen. The transferee will be a party to the proceedings. Its exposure will have been triggered by the complaint against the transferor and the defence raised by the transferor in response. But that exposure, once triggered in that way, is not akin to that created, for example, by a civil claim for indemnity or contribution brought by a civil defendant against a third party, that might result in an award against the third party in favour of the defendant. The exposure of the transferee in this situation is to an award in favour of the affected employees, or in this case the claimant, not to an award in favour of the transferor. I can see no reason in principle why a claimant could not reach a settlement with a transferee in respect of the claimant’s contingent right to receive such an award, nor why a claimant could not relinquish the contingent right to such an award, subject, in both cases of course, to the safeguards which generally apply in relation to compromises of litigation in the employment tribunal.

It seems to me that it would in fact be undesirable and contrary to public policy if this were not a possibility. It would mean that where a transferee that faces such a  potential exposure wishes to compromise with the claimant in order to draw a line under its own involvement in the proceedings, and where the claimant wishes to reach such a compromise whilst continuing to proceed against the transferor, these two willing parties would be unable to settle that aspect of the litigation in that way.

In the course of oral argument, Mr Sharples did concede that such a thing was, on reflection, doctrinally possible, notwithstanding how he had argued matters in his written skeleton. But he submitted that this was not in fact what happened in this case. In particular, he relied upon two features of the wording of the withdrawal email. The first was that it referred to the “claims” against BDHL. That, he said, could only mean the individual complaints that had been presented against BDHL by the claimant, being of unfair dismissal and for wages and holiday pay. Secondly, he relied upon the statement in the final sentence that the claim against Mrs Middleton was still being pursued.

It seems to me that the issue here is not to be determined by reference to what the claimant or Mrs Slade-Andrews subjectively intended or understood to be the position following the dismissal upon withdrawal, but rather what was the effect, reading them objectively and in context, of the relevant communications. As to that, I begin with the following features.

Firstly, I should address the point raised in BDHL’s skeleton about time limits. The claimant is not now seeking to bring some new complaint against BDHL. She is asserting that she acquired a contingent right to a remedy against it in the course of the tribunal litigation, and that the tribunal was wrong to conclude that she had then lost that right. That right was said to arise from the fact of the original complaint against Mrs Morrison under Regulation 13(1) combined with the defence which she then ran to it, and which was effectively notified to BDHL.

I note that there was no issue before the tribunal as to whether the original claim form had been presented in time; and indeed, Mr Sharples having informed me of the dates on which ACAS conciliation began and ended against both respondents, it appears to me that it was, in respect of both of them, in time. I also observe that the relevant Regulations do not stipulate any time limit within which the defence must be raised, in order to trigger the transferee being made a party to the proceedings. I note also that Mrs Middleton raising that defence in her grounds of resistance was treated by the tribunal as effective notice to BDHL for Regulation 15(5) purposes, and there has been no challenge to that aspect of the decision, as such.

I note also that the agreed list of issues adopted at the PHCM flagged up a sub-issue as to whether BDHL had notified Mrs Middleton of any measures that it envisaged. That said, the list of issues refers only to the concept of joint and several liability, not to potential sole liability on the part of the transferee under Regulation 15(8)(b). Indeed, it appears to assume that joint and several liability, where it does arise, which would be under Regulation 15(9), is something within the discretion of the tribunal. But that is not the case: see Todd v Strain [2011] IRLR 11. This is unfortunate, but I do not think it could be said objectively that on this account Mrs Middleton had abandoned her defence, nor that the claimant had at this point relinquished her potential right to a Regulation 15(8)(b) award.

Accordingly, immediately prior to the ACAS settlement and the withdrawal and dismissal, the possibility of a Regulation 15(8)(b) award being made, depending on the outcome of the case, remained live. However, I do not agree with Mr Sharples’ arguments as to the objective meaning and effect of the withdrawal and the judgment dismissing upon withdrawal. My reasons are these.

Firstly, the words “claim” and “claims” do not have a single or consistent meaning or usage in the context of employment tribunal litigation. “Claim” can be used to mean a claim form or the overall proceedings that are initiated by the presentation of a claim form, which are assigned a unique case number. But it also sometimes used to mean a particular complaint contained within a claim form, asserting a distinct cause of action arising under a particular statutory provision. A party may also be said to be entitled to claim a particular remedy or remedies, if a particular complaint (as I call it) is held to be well-founded. Even within the Employment Tribunal Rules of Procedure 2013, more than one use of this word is identified in the definitions rule 1. Further, in my experience, judges and tribunals do use the words “claim” and “claims” in both of these different ways.

Accordingly, what the withdrawal letter meant by the words “claims” cannot be assumed. It has to be discerned, by divining its sense reading this email objectively in context and as a whole.

As to that, I regard the following features as significant. Firstly, the email gives no details or particulars of what it is referring to, beyond the use of the word “claims”. It does not state, for example, that it means to refer specifically and only to what I would call the complaints of unfair dismissal, wages and/or holiday pay and not to any other complaints, rights or remedies which the claimant might have, or potentially have, against BDHL.

Secondly and importantly, to the contrary, it goes on to state that there is no objection to “all claims” being dismissed and refers there to all claims “under case number 1801214/2020”. This conveys the sense that it relates to the position as between the claimant and BDHL in the proceedings under that case number as a whole. This is just the sort of language that employment tribunals are used to seeing used by a party or parties when the intention is not inadvertently to leave anything outstanding in respect of a given respondent, but to make a clean sweep of everything arising in the proceedings in question against that respondent. This second sentence, I conclude, conveys that the claimant was indeed drawing a line under the second respondent’s entire involvement in the proceedings under this particular number.

The final sentence of the email does not, in my view, convey objectively that the claimant was nevertheless not relinquishing the right to seek a remedy against BDHL through the route of the Regulation 13 claim against Mrs Middleton. Whether or not it is strictly necessary, it is a normal precaution when withdrawing some but not all complaints against a single respondent, to identify and confirm that other complaints are maintained, and what they are. It is also a common precaution in proceedings involving more than one respondent, when withdrawing against one respondent only, to make clear that this does not affect the maintenance of the proceedings against the other or others.

The inclusion of such a statement does not by itself therefore signal that the claimant was not only confirming that the proceedings were maintained in respect of the complaint against Ms Middleton, but also that she was not relinquishing the right to seek a remedy against BDHL arising out of that complaint. Rather, in my view, given the content and objective sense of the main paragraph of the email, one would have expected that if that was the intended sole or at any rate key point of the final sentence, that would have simply been stated explicitly and in terms.

I observe that BDHL was, from the outset, a party to the proceedings in case 1801214/2020 in respect of the unfair dismissal and money claims. Had it not already been a party, the service on it of a copy of the response of Mrs Middleton, or other Regulation 15(5) notice, would then have made it a party to those same proceedings under that case number in respect of its possible exposure arising from the Regulation 13 claim against Mrs Middleton and in light of her defence. In the event, it was a party to the proceedings in both respects. I conclude that the natural meaning of the withdrawal email is that the claimant was content for BDHL to be entirely dismissed from those proceedings in all respects, without any distinction, or reservation being made, in relation to the exposure of BDHL in those proceedings to a potential Regulation 15(8)(b) award.

I conclude, therefore, that the contents of the withdrawal email would have been enough by themselves to preclude the claimant from seeking a Regulation 15(8)(b) award against BDHL in these same proceedings. But the judgment subsequently issued by the tribunal reinforced the position. Indeed, I note that it provides an example of the varying practices that exist regarding the use of terminology. It uses the word “complaint” in the singular, but plainly not to refer to what I would describe as a single complaint in the sense of one cause of action, but in a wide and general sense.

Returning to the employment tribunal’s reasons, in paragraph 1 it said that “[b]oth claims”, meaning both the overall claims brought by the claimant and those brought by her erstwhile colleague, “against Black Dog were settled and dismissed following withdrawal”. It added that in the claimant’s case this was recorded in a judgment sent to the parties on 17 August 2020. At paragraph 8 it said:

In paragraph 54, it referred to its conclusion “that the dismissal judgment against Black Dog prevents us awarding compensation under regulation 15(8)(b)”.

For reasons I have given, I do agree with Mr Sharples that the tribunal was wrong to suppose that the claimant could have presented a Regulation 13 complaint against BDHL directly, but I do not think that that vitiates its conclusion at paragraph 8, to which it refers back in paragraph 54. That is because it was effectively, as it were, merely eliminating something else from its enquiries. The conclusion reached there, that the effect of the withdrawal and dismissal was that BDHL had been released from the proceedings under this case number entirely, so that it could not now be the subject of an award under Regulation 15, was sound. The tribunal did not err in that respect and therefore did not err when it declined for that reason to make a Regulation 15(8)(b) award against it.

But in case I am wrong, I will say something briefly about what the tribunal said at paragraph 54 about the position if it was wrong. I can only make limited observations given that I am considering here a counterfactual that I do not consider actually applies. But I would observe that in this context, I can see that the error in paragraph 38 about Regulation 15(7) might have had some purchase, as it might be said that the tribunal in this context did attach some weight to its assumption that the claimant could have brought a freestanding claim seeking a remedy under that regulation.

I do not, however, think that the tribunal was necessarily wrong to have regard to the fact that BDHL was unrepresented at the August 2020 hearing, in circumstances where, it appears from the decision, Mrs Slade-Andrews did not anticipate that her company could have any further exposure to liability to the claimant. It seems to me that, had there in law still been the possibility, notwithstanding the dismissal upon withdrawal, of a Regulation 15(8)(b) award against BDHL, it would at least have been incumbent on the tribunal to consider what might be necessary to ensure that it had a fair opportunity to be legally represented, if it wished, or otherwise to put its case on that point.

Finally, having regard to the answer, and submissions, of BDHL attaching weight and significance to the ACAS settlement, I observe that it might be, had the tribunal concluded, and concluded correctly in law (contrary to my view), that the withdrawal and dismissal did not by themselves preclude a Regulation 15(8)(b) award, that it would then have been invited to give consideration to the implications of the content of the ACAS COT3. But as that document was not before the tribunal, and as that is not something that I have to decide, I will say no more about it.

I turn to ground three. This ground contends that the tribunal erred because it failed to make proper findings as to whether there had been a failure to inform the claimant of the legal, social and economic implications of the transfer pursuant to Regulation 13(2)(b). This was put as essentially being a matter of failure to give sufficient reasons, because it was said that the tribunal had not identified with sufficient clarity (if at all) what, if anything, Mrs Slade-Andrews had told the claimant about those aspects. I can address this ground fairly shortly.

The list of issues at the PHCM, repeated by the tribunal in its decision with which I am concerned, was, in respect of the information obligation, simply a wholesale lift from the wording of Regulation 13(2), without elaboration. It did not tell the reader what the particular issues were in this case. As to what those issues in fact were, there was no dispute that the claimant was told that there would be a transfer, and was told, or understood, that the legal effect would be to transfer her into the employment of the transferee. The issues of substance related to the failure to identify who that transferee was and the failure of the transferor to inform and consult about measures envisaged by the transferee.

Regulation 13(2)(b), relating to “legal, economic and social implications”, does not, in my experience, crop up very much in employment tribunal litigation or indeed in the EAT or higher courts. The words are there because they are found in the parent directive, but it is perhaps uncertain what in particular the reference to “economic” and to “social” implications truly adds to the other requirements. Be that as it may, I asked Mr Sharples whether the particulars of claim in this case identified any other specific matters that the claimant considered were legal, social or economic implications, but about which she was not informed, or in respect of which she was not consulted at the time and should have been. He fairly acknowledged that there were no such particulars. For that reason, it seems to me that there was no error on the part of the tribunal in failing to consider a potential aspect of the claim that was not in fact advanced. This ground therefore fails.

Finally, ground four contends that the tribunal erred in its decision at paragraph 52 to award no compensation at all in respect of the failure of Mrs Middleton to notify to the claimant pre-transfer the identity of the transferee. Mr Sharples referred to the guidance in Sweetin v Coral Racing [2006] IRLR 252. This recognises that the tribunal has a wide discretion in determining the award, but should focus on the seriousness of the employer’s default, which will vary from a technical breach to a complete failure to consult; and it will wish to consider other factors, including whether the failure was deliberate, whether the employer has had any legal advice and so forth. The tribunal can then take account of mitigating circumstances. He referred also to the further guidance in Todd v Strain and in Shields Automotive Ltd v Langdon[2013] UKEAT/0059/12.

Mr Sharples submitted that the tribunal had erred, in particular in two respects. Firstly, the identity of the transferee, that is, the future employer of the claimant, could not be dismissed as a mere technicality. Secondly, the tribunal similarly was wrong to view this as a failure falling under Regulation 13(2)(b) rather than Regulation 13(2)(a). I agree with Mr Sharples on both points.

As a matter of law, a transfer may occur, and be effective in terms of the operation of Regulation 4, even though the employee has not been told the identity of the transferee or even that the transfer has occurred. But knowing precisely who one’s employer is, is of fundamental importance to any employee. Even where, as in this case, it is known that the new employer is likely to be a newly-formed company, and who its proprietor will be, it still matters to know the name and identity of the unique legal person who will be the employer. I think that Mr Sharples is right to say that the tribunal therefore should not have viewed this as a mere technicality. It is also a curiosity of the wording of Regulation 13(2) that it does not in terms expressly state that there is a duty to inform affected employees, or the representatives of affected employees, of the identity of the transferee. But there plainly is such a duty; and I agree with Mr Sharples that that is because it is part and parcel of the duty under Regulation 13(2)(a) to inform employees of the fact that the transfer is to take place. An essential facet of being told of that fact, is to be told to whom the transfer will be taking place.

All of that said, I do not think that any of the other matters mentioned by the employment tribunal were considerations that it could not properly have taken into account; and the authorities do establish that, whilst it is important to consider the extent and seriousness of the default, other mitigating factors and circumstances can and should also properly be brought into play. Nevertheless, given the fundamental importance of knowing the identity of one’s future employer, I do think it was an error to make a zero award in this respect. I will therefore quash that aspect of the tribunal’s decision and remit it for fresh consideration of the appropriate award to be made in respect of Mrs Middleton’s failure to provide that information in good time prior to the transfer.

I have been persuaded to remit the matter to a different tribunal. I am mainly influenced by the fact that the tribunal have not just referred to the breach as technical. They have called it “one very technical breach”. I think that does tend to suggest that it might be difficult for them to clear their minds of that thought and to come to it afresh; and it is important, whatever the award that is made second time around, that it commands the confidence of both parties. I will therefore direct that remission of that issue, of the award to make in respect of the failure to notify the identity of the transferee pre-transfer, be to a differently-constituted tribunal.