Jones (t/a The Barley Mow Public House) v Beardmore

A tribunal must give the parties a fair opportunity to address a material point on which it proposes to decide the case, particularly where that point fundamentally changes the basis of the dispute. A failure to raise such a point will justify appellate intervention where it causes serious procedural unfairness and material prejudice.

For a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006, there must be a transfer of an organised grouping of resources pursuing an economic activity which retains its identity. An individual employee, whose personal services are moved from one employer to another, cannot itself constitute the transferred economic entity.

The Employment Tribunal held that the respondent’s employee had continuity of employment because her work had gradually moved from a farm partnership to the respondent’s public house and brewery. It treated her as an economic entity transferred under TUPE, although the issue had not been raised by the claimant or put to the respondent’s solicitor.

The respondent appealed. The central issues were whether the tribunal had acted fairly by deciding the case on an unargued TUPE basis and whether the claimant could constitute an economic entity for the purposes of a transfer.

1. The appeal was allowed. The Employment Tribunal had decided the continuity issue on the basis of a TUPE transfer without notifying the parties that it was considering that issue. That was a serious and material breach of fairness because TUPE altered the basis on which the case had apparently been argued and the respondent had no opportunity to address it.
2. The principles discussed in Hereford and Worcester County Council v Neale [1986] IRLR 168 and Stanley Cole (Wainfleet) Ltd v Sheridan [2003] ICR 1449 require attention to the centrality of the unraised point, the procedural irregularity and the substantial prejudice caused. The present case satisfied that standard.
3. Independently, there could be no TUPE transfer. Regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 requires a transfer of an undertaking, business or part of one situated in the United Kingdom, involving an economic entity retaining its identity. Regulation 3(2) defines an economic entity as an organised grouping of resources pursuing an economic activity.
4. The identity-retention requirement, identified in Spijkers v Gebroeders Benedik Abattoir CV et Alfred Benedik en Zonen BV [1986] ECR 1119, was not met. The claimant was an employee providing her own services. The activities carried on for the partnership were not transferred; she took a different job with a different employer. She therefore could not herself be the economic entity.
5. Remission was unnecessary because the tribunal would have been bound to find that there had been no TUPE transfer. The claimant consequently lacked sufficient continuity of employment to bring her unfair-dismissal claim.

• Employment Appeal Tribunal: allowed the respondent’s appeal from the decision of the Employment Tribunal at Shrewsbury.
• Employment Tribunal: held that the claimant’s employment had transferred under TUPE and that she had sufficient continuity of employment to pursue an unfair-dismissal claim.