Hamilton v Stonehouse Coaches Ltd & Ors

An Employment Tribunal must make findings on disputed facts material to a TUPE transfer and give adequate reasons for concluding that an employee objected to transfer under regulation 4(7). A failure to seek transfer, a request for redundancy pay, or contact seeking confirmation that the transferee has not employed the worker does not, without explained supporting findings, establish an objection.

The Tribunal must identify the transfer date and determine whether the employee was employed by the transferor immediately before it. Where its reasons do not resolve material evidential conflicts, the proper course may be to return the case to the same Tribunal to clarify and supplement its findings and reasons without receiving further evidence.

The Claimant had worked as a school-bus attendant for the First Respondent. Following a successful tender, the Second Respondent began providing the relevant school transport service. The Claimant sought redundancy pay from the First Respondent and obtained written confirmation from the Second Respondent that she had never been employed by it.

The Employment Tribunal found that there had been a relevant service-provision transfer and that the Claimant had objected to transfer. It dismissed her claims against both respondents, holding that her objection prevented transfer to the Second Respondent and precluded a dismissal claim against the First Respondent.

On appeal, the central issue was whether the Employment Tribunal's findings and reasons adequately supported its conclusion that the Claimant had objected to the transfer.

1. Appeal allowed to the extent of a remittal for clarification and supplementary reasons. The Employment Tribunal had not resolved all material factual disputes or adequately explained how its findings justified its conclusions that there was a relevant transfer and that the Claimant objected to it.

2. The Tribunal had not identified when the transfer occurred. It therefore had not made the necessary finding that the Claimant was employed by the transferor immediately before that transfer. It also had not resolved conflicting evidence about whether the First Respondent had given notice in March 2012, whether the Claimant remained employed when she telephoned in August, and the asserted end date of her employment.

3. The conclusion that the Claimant objected to transfer was insufficiently reasoned. The Tribunal had not explained what evidence established an objection, or resolved the conflict between the Claimant's assertion that she was never asked to work for the Second Respondent and the alleged evidence that she did not want to do so because she had another job arranged.

4. It is not necessary for an employee to seek a transfer. The material question is whether the employee objected to it. The Tribunal also did not explain the relevance of its comparison with four employees who had transferred, apparently in a different year.

5. Following the course described in Barke v SEETEC Business Technology Centre Ltd [2005] IRLR 633, the case was returned to the same Employment Tribunal. It was invited to consider the existing notes of evidence, make any appropriate further findings, and clarify and supplement its written reasons. It was not to hear further evidence.

• Employment Appeal Tribunal: Returned the case to the same Employment Tribunal for clarification, further findings on the existing evidence, and supplementary written reasons.

• Employment Tribunal: Found a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006, held that the Claimant objected to transfer, and dismissed claims against both respondents.