No right to make direct claim against transferee for information failure

Piers Chadwick, Partner at KLC successfully represented Morrison Facilities Services (MFS) at the employment tribunal in a multiple claimant and multiple respondent case concerning whether a claimant can bring a claim for a breach of TUPE Regulation 13(4) against a transferee directly.   

Regulation 13(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 relating to the duty to inform and consult provides that the "transferee shall give the transferor such information at such time as will enable the transferor to perform the duty imposed upon him ..."  

The employment tribunal found in favour of MFS but described the issue in the case of as a "novel point" and welcomed further guidance from the EAT.
The case, Allen & ors v Morrison Facilities Services Ltd (MFS), identified as one of Michael Rubenstein's key employment cases for 2013- 2014 was heard at the EAT on 10 December 2013 and the decision to dismiss the appeal was promulgated yesterday.  

The judgment set out that TUPE Regulation 13(4) does not impose an obligation on the transferee to provide information to the employees of the transferor. The obligation on the transferee is to provide such information to the transferor at such time as will enable the transferor to perform their obligations under Regulation 13(2)(d).  A complaint to an ET under Regulation 15(1)(d) can only be brought by an employee against his employer.  The Claimant’s employer at the time of the alleged breach of Regulation 13(4) was the transferor and not the transferee Respondent.  

The only route for employees of the transferor to obtain compensation from the transferee for breach of their obligations to a transferor under Regulation 13(4) is to pursue a claim against the transferor for breach of Regulation 13(2)(d) and for the transferor to join the transferee as a party to the proceedings under Regulation 15(5).  An order against the transferee can only be made if the Tribunal find the transferor to be in breach of Regulation 13(2)(d) and to have established that it was not reasonably practicable to have performed that duty because the transferee had been in breach of their obligation to give the transferor information under Regulation 13(4). In this case the Claimants settled or withdrew their claims against all the transferors therefore this route was not open to them.  

Click here to read the full judgment.