Dillon & Ors v Todd & Anor

Where an Employment Appeal Tribunal makes or varies an order under regulation 15(8) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the three-month period for enforcement proceedings under regulation 15(10) runs from the EAT’s order to the extent that it creates or changes the liability relied on.

Alternatively, reasonable ignorance of the unusual enforcement procedure may make it not reasonably practicable to present a claim within time. A claimant who acts within a reasonable time after discovering the correct procedure may therefore obtain an extension.

The appellants were employees affected by a transfer of a care home. An Employment Tribunal found that the transferor had failed to comply with consultation obligations and awarded compensation under regulation 15(8), but dismissed the claim against the transferee.

On appeal, the EAT reduced the award and declared the transferee jointly and severally liable. The appellants then brought proceedings under regulation 15(10)(b), asserting that they were employees within the relevant class and had not been paid.

The Employment Tribunal held that the claims were out of time, calculating time from the original tribunal order. The central issues were when time began to run and, alternatively, whether it had been reasonably practicable to present the claims earlier.

1. Appeal allowed. The claims were remitted to the Employment Tribunal to determine, if necessary by agreement or further adjudication, the sums due to each appellant.
2. Regulation 15(10)(b) requires an employee to show that compensation has not been paid in pursuance of an order under regulation 15(8). Where the EAT makes an order for the first time against a transferee, proceedings cannot properly be brought against that transferee before the EAT’s order is promulgated. The reference to the tribunal’s order in regulation 15(12)(b) must therefore include an EAT order made while exercising the powers of an Employment Tribunal under section 35 of the Employment Tribunals Act 1996.
3. The same conclusion applies where the EAT varies the amount awarded. Proceedings based on the original award would concern the wrong amount, whereas proceedings based on the varied award can only be brought after the appellate order.
4. The transferee’s joint and several liability under regulation 15(9) is a consequence of the compensation order, but the transferee should be joined as a party so that it has an opportunity to contest liability. Regulation 15(8), read with regulation 15(9), empowers the tribunal to make an order recording that liability.
5. Alternatively, the appellants’ reasonable ignorance of the unusual enforcement procedure meant that it had not been reasonably practicable to present the claims within three months. The official guidance did not explain that fresh proceedings were required. The appellants acted within a reasonable time after learning the true position.

• Employment Appeal Tribunal: The EAT previously dismissed the transferor’s liability appeal, reduced the compensation award and declared the transferee jointly and severally liable. That decision was reported as [2011] IRLR 11.
• Employment Tribunal, Glasgow: The tribunal upheld the consultation complaint against the transferor and made an award under regulation 15(8), but dismissed the claim against the transferee.
• Employment Tribunal, Glasgow: Employment Judge Muir held on 30 November 2010 that the appellants’ enforcement claims were out of time and that it had been reasonably practicable to present them earlier. The EAT allowed the appeal from that decision.