Wendy Drake v Churchill Contract Services Ltd

Where material put before an employment tribunal raises a real possibility that an unrepresented claimant advances a legally distinct claim, the tribunal must proactively clarify the claim. It must do so at case management and, if necessary, again at the substantive hearing. Mere confirmation of an earlier list of issues is insufficient where that list may have omitted the claim.

A transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006 may be relevant both to inherited contractual terms and to an automatically unfair dismissal claim. The latter requires consideration of whether dismissal was because of the transfer and, if so, whether an economic, technical or organisational reason entailing workforce changes applies.

The claimant, a cleaner who transferred to the respondent under TUPE, was dismissed and re-engaged on altered hours and reduced pay after consultation failed to produce agreement. She brought her tribunal claim as a litigant in person.

The Employment Tribunal treated the case solely as an ordinary unfair dismissal claim. It found that the respondent had a sound business reason, arising from its client’s requirement to reduce cleaning hours, and dismissed the claim.

On appeal, the claimant contended that her claim form, case-management material and email also raised an unabandoned complaint of automatic unfair dismissal under regulation 7 of Transfer of Undertakings (Protection of Employment) Regulations 2006. The central issue was whether the tribunal should have identified and clarified that possible claim.

1. Appeal allowed and remitted. The tribunal erred by failing proactively to consider whether the claimant was advancing an automatically unfair dismissal claim under regulation 7 of Transfer of Undertakings (Protection of Employment) Regulations 2006.

2. Regulation 4(1), which preserves transferred contractual terms, and regulation 7, which concerns dismissal because of a transfer, have distinct legal effects. An employee can rely on regulation 4 as background to an ordinary unfair dismissal complaint without necessarily alleging a regulation 7 claim. However, the factual bases of the two claims may substantially overlap.

3. Where material before the tribunal might reasonably indicate that an unrepresented claimant is advancing a regulation 7 claim, the tribunal must ensure that the position is clarified. Doing so is proper case management and does not draw the tribunal into the factual or evidential arena.

4. The claim form referred to a pre-transfer letter indicating that the transferee might review terms and conditions after transfer. The claimant repeated that point in her case-management agenda and email. Those references did not conclusively establish that dismissal was because of the transfer, but they raised a real possibility of that case and required clarification. The case-management minute did not show that this had occurred, and generic confirmation of the list of issues at the merits hearing was inadequate.

5. The existing finding that the respondent acted because of its client’s requirements did not necessarily exclude a further finding that dismissal was also because of the transfer. If regulation 7(1) applies, the tribunal must also consider regulation 7(2). The matter was remitted for case management and, if maintained, a fresh hearing of the regulation 7 issue, ordinarily before the same Employment Judge.

• Employment Appeal Tribunal — allowed the claimant’s appeal and remitted the possible regulation 7 claim for further case management and a fresh substantive hearing.
• Employment Tribunal, Watford — dismissed the claimant’s ordinary unfair dismissal claim after finding that dismissal and re-engagement on revised terms was fair for some other substantial reason.