Gina Gannon v Teuta Bicaku & Anor t/a Ivory Dental Clinic

An employment tribunal must address and apply all material duties under the TUPE Regulations before deciding that a micro-business has complied with its duties to inform and consult affected employees. This includes the content, method and timing of information, any duty to consult about proposed measures, and the special-circumstances qualification.

Where an employer relies, expressly or implicitly, on special circumstances, the tribunal must determine whether performance was not reasonably practicable and whether all reasonably practicable steps were taken. A failure to make material factual findings or to analyse those issues is an error of law requiring the decision to be set aside and, where the evidential gaps cannot be resolved on appeal, remitted for a fresh hearing.

The claimant was employed as practice manager of a dental practice. Following discussions about a sale, the practice was sold to Dental Beauty on 9 March 2021. The claimant alleged that the two principals of the transferor practice had breached their duties to inform and consult under the TUPE Regulations.

The Employment Tribunal at Watford dismissed the claim. It found that staff were told of the sale, the purchaser and the transfer date on the morning of completion. The claimant appealed, contending that the tribunal had failed to address material statutory duties and to make necessary factual findings about events on the day of transfer.

1. Appeal allowed. The Employment Tribunal’s conclusion that the respondents had complied with regulation 13A could not stand. Its reasons addressed only limited information said to have been given on the morning of the transfer.

2. The tribunal had failed to consider, analyse and apply the material statutory provisions. These included the requirements concerning the legal, economic and social implications of the transfer; proposed measures; the method of giving information; consultation about measures; and the special-circumstances qualification in regulations 13(2), 13(5), 13(6) and 13(9) of the TUPE Regulations. It also had to address the employer’s burden under regulation 15(2) if special circumstances were in issue.

3. The tribunal’s finding that there was no earlier occasion on which staff could have been told may have been intended to invoke regulation 13(9). But it neither identified that provision nor conducted the required analysis of whether special circumstances made performance not reasonably practicable and whether all reasonably practicable steps had been taken.

4. There were also material unresolved factual issues. The tribunal had not made findings on the alleged afternoon meeting with the buyers, the claimant’s involvement in it, or whether she agreed to transfer to the buyer’s employment. Those matters could bear on the statutory issues.

5. The whole claim was remitted to a freshly constituted tribunal for a rehearing of the evidence and determination under the relevant provisions. The judge noted that compensation for a breach was capped at 13 weeks’ pay and encouraged settlement, but made no substantive determination of compensation.

• Employment Appeal Tribunal: Allowed the appeal and remitted the entire claim to a freshly constituted tribunal for rehearing.

• Employment Tribunal, Watford: Dismissed the claimant’s complaint under regulations 13 and 13A of the TUPE Regulations in a judgment sent on 12 October 2022.