Allen v Morrisons Facilities Services Ltd

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, Regulation 13(4) requires a transferee to provide information to the transferor. It does not require the transferee to provide that information directly to employees of the transferor.

A complaint under Regulation 15(1)(d) is brought by affected employees against their employer at the date of the alleged breach. Employees of a transferor therefore cannot bring a freestanding claim against the transferee for breach of Regulation 13(4), even if they later transfer to that transferee.

Regulation 15(5) provides the exclusive route by which such employees may obtain compensation from the transferee. They must claim against the transferor, which may join the transferee and establish that the transferee’s failure to provide information made compliance by the transferor not reasonably practicable.

Employees transferred from contractors providing housing-maintenance services to Leeds City Council. They brought claims against, among others, the transferee, alleging failures to inform and consult under Regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The Employment Tribunal held by a majority that it had no jurisdiction to entertain a freestanding claim against the transferee for breach of Regulation 13(4), following Mitie Group v Mullineaux. The employees appealed, contending that the amended wording of Regulation 13(2)(d), the purpose of Directive 2001/23/EC and the absence of an effective remedy justified a direct claim.

The central issue was whether transferred employees could claim directly against the transferee for failure to provide information to the transferor.

1. Appeal dismissed. The Employment Tribunal correctly dismissed the claims against the transferee.
2. Regulation 13 implements the vertical information and consultation scheme in Article 7 of Directive 2001/23/EC. Regulation 13(4) imposes an obligation on the transferee to give the transferor information at a time enabling the transferor to comply with Regulation 13(2)(d). It does not impose an obligation to inform employees of the transferor, or their representatives.
3. Regulation 13(2)(d) requires the transferor to inform representatives of its affected employees of the measures which it envisages the transferee will take in relation to employees who will transfer. The information must be supplied before the transfer, allowing employees to decide whether to object under Regulation 4(7).
4. Regulation 15 supplies the mechanism for redress and does not create an independent cause of action. Standing under Regulation 15(1)(d) is determined by the employee’s status when the alleged breach occurred, not by employment status when the claim is lodged. The employees were then employed by the transferors, not the transferee.
5. Regulation 15(5) is the exclusive route for an affected employee of a transferor to obtain compensation from a transferee. The employee must claim against the transferor. The transferor must give notice that it relies on the transferee’s failure to provide information, thereby joining the transferee. An order against the transferee under Regulation 15(8)(b) is possible only if the complaint against the transferor is well founded and the statutory preconditions are established.
6. Because the claims against the transferors had been settled or withdrawn, those preconditions could not be established. No independent claim against the transferee was available.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s majority decision that the claims against the transferee could not proceed as freestanding claims under Regulations 13(4) and 15.