Dunn v The Institute of Cemetery and Crematorium Management

Where the 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 an employee’s enforcement claim under regulation 15(10) runs from the EAT’s order insofar as that order supplies, or changes, the relevant entitlement. A transferee may be made jointly and severally liable under regulation 15(9), despite the drafting of regulation 15(8). Alternatively, reasonable ignorance of the unusual enforcement procedure may make it not reasonably practicable to present a claim in time, provided the claimant acts within a reasonable period after learning the true position.

The appellants were employees affected by the sale of a care home. An Employment Tribunal found that the transferor had breached the consultation obligations in regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and awarded thirteen weeks’ pay, but made no order against the transferee.

On an earlier appeal, liability was upheld, compensation was reduced to seven weeks’ pay, and the transferee was declared jointly and severally liable: Todd v Strain, [2011] IRLR 11. The appellants then brought enforcement claims under regulation 15(10). The issue was when time began to run and, alternatively, whether it had been reasonably practicable to present the claims earlier.

1. Appeal allowed. The enforcement claims were remitted to the Employment Tribunal to determine, if necessary by agreement or otherwise, the sums due to each appellant.

2. Regulation 15(10)(b) requires the employee to establish that the transferor or transferee has failed to pay compensation in pursuance of the relevant order. Where the EAT makes an order for the first time against the transferee, proceedings against that transferee cannot properly begin before the EAT’s order. The reference in regulation 15(12)(b) to the tribunal’s order must therefore include an order made by the EAT when exercising the powers of the Employment Tribunal under section 35 of the Employment Tribunals Act 1996.

3. The same principle applies where the EAT varies the amount awarded against the transferor. Proceedings based on the original award would concern the wrong amount. The period for an enforcement claim concerning the correct award runs from the EAT’s varied order.

4. The transferee’s liability under regulation 15(9) is not merely an automatic consequence requiring no order. A transferee should be a party to the proceedings and have an opportunity to contest liability. Regulation 15(8), read subject to regulation 15(9), permits an order recording the transferee’s joint and several liability. That construction is supported by regulation 15(10)(b), which assumes that the transferee’s liability arises in pursuance of the order.

5. Alternatively, the appellants’ reasonable ignorance of the unusual enforcement procedure made it not reasonably practicable to comply with the time limit. They were unrepresented, the official guidance did not explain the need for fresh proceedings, and they acted within a reasonable time after the position was clarified. The approach was consistent with John Lewis Partnership v Charman, UKEAT/0079/11.

• Employment Tribunal, Glasgow: found the transferor in breach of the consultation obligations, awarded thirteen weeks’ pay, and dismissed the claim against the transferee.
• Employment Appeal Tribunal: on an earlier appeal, upheld liability, reduced compensation to seven weeks’ pay, and declared the transferee jointly and severally liable: Todd v Strain, [2011] IRLR 11.
• Employment Appeal Tribunal: allowed the present appeal and remitted the enforcement claims.