Employment Tribunal success | Breach of TUPE allegations

We acted on behalf of our client, a specialist in freight and distribution of fresh produce, in a claim brought in the employment tribunal by an employee. The employee alleged there had been a breach of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) when a national supermarket transferred their contract for deliveries from their original distribution company (and the employee’s original employer) to our client.

Our client admitted that a TUPE transfer had taken place but stated that the relevant duties were owed by the original distribution company.

The claim was not straightforward as the original distribution company had gone into liquidation and the administrator was involved. Then as the claim proceeded, the employee advised the tribunal that he was bankrupt and the Trustee in Bankruptcy became involved in the matter. A stay of proceedings was granted.

This could have meant a delay of around a year until the discharge of bankruptcy. However, we successfully applied to have the stay lifted on the basis that, as the claim was under TUPE, it was personal to the employee and therefore did not vest in the Trustee in bankruptcy and furthermore, if the employee was bankrupt prior to issuing his claim, then he had no capacity to bring such a claim to begin with.

Thereafter the employee did not comply with the direction of the tribunal and avoided attending court hearings.  We successfully applied on behalf of our client for a Pre Hearing Review to have the claim struck out, on the grounds that it was scandalous and/or vexatious, and that the proceedings had been conducted in an unreasonable manner and the claim was not actively pursued.

At the Pre Hearing Review, the Employment Judge agreed with our client’s position and in his Judgment commented that the employee had shown “complete disrespect for the Tribunal Orders and the Tribunal procedure”. The claim was struck out without the need to proceed further. Whilst in these circumstances an order for costs would usually have been pursued, a decision was taken not to do so owing to the employee’s bankruptcy.

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