Hickling (t/a Imperial Day Nursery) & Ors v. Marshall

An individual affected employee may bring a complaint concerning an employer’s failure to comply with the information and consultation duties under the Transfer of Undertakings (Protection of Employment) Regulations 2006. Although most duties in regulation 13 concern consultation with employee representatives, regulation 13(11) imposes duties where employees have failed to elect representatives. Those duties include inviting the election and, in default, giving affected employees the required information. A defective description of the statutory basis of the claim will not invalidate the proceedings where the parties understood the complaint and no material prejudice resulted. A costs order may be inappropriate where the standing issue was legally difficult and the relevant authority was unknown to both parties.

Ms Marshall, a nursery nurse, brought claims following the incorporation of the nursery, which the employers accepted involved a transfer of an undertaking. There had been no information or consultation with employee representatives, and no representatives existed. The Employment Tribunal upheld her claim under regulation 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and awarded 13 weeks’ compensation. It also ordered the employers to pay £862.15 in costs.

The employers appealed, arguing that regulations 13(2) and 13(6) created obligations only towards representatives, that Ms Marshall lacked standing, and that the claim had not been pleaded under regulation 13(11). They also challenged the costs order.

1. The appeal against the finding that Ms Marshall could pursue the TUPE complaint was dismissed. The Employment Tribunal’s references to regulation 15(b), regulation 15B and regulation 13(14) were errors, but the parties understood that the complaint concerned the admitted failure to inform and consult in connection with the transfer.
2. The principal obligations in regulation 13 concern informing and consulting appropriate employee representatives. However, regulation 13(11) applies where affected employees have been invited to elect representatives but fail to do so within a reasonable time. It requires information to be given to the affected employees and, by necessary implication, requires the employer to invite the election and comply with the requirements imposed by regulation 14.
3. Howard v Millrise Ltd [2005] IRLR 84 was on all fours and was applied. It established the route by which an individual employee may complain of non-compliance with what is now regulation 13. Whether the complaint was properly analysed under regulation 15(1)(a), (b) or (d) was unnecessary to decide.
4. The Tribunal did not err in holding that the employers had breached their information and consultation obligations and that Ms Marshall could bring the complaint under regulation 15. No material prejudice from the pleading formulation was shown.
5. The costs appeal was allowed. The issue of individual standing was difficult, and neither party or the Tribunal had been aware of Howard v Millrise Ltd [2005] IRLR 84. The employers’ resistance was therefore not misconceived. The costs order was set aside.

• Employment Appeal Tribunal: dismissed the appeal against the finding that the TUPE claim succeeded; allowed the appeal against the costs order and set it aside.
• Employment Tribunal: judgment entered on 9 February 2010; upheld Ms Marshall’s TUPE claim and awarded 13 weeks’ compensation and £862.15 costs.