Employment Rights – Transfer of an Undertaking

Part 7 – Remedies

This document has set out a number of rights and duties for employees, their representatives and a right for the new employer to receive information from the transferor employer. This section describes how these rights can be enforced and remedies obtained.

(a) Rights for employees and their representatives

If any employee considers that their contractual rights have been infringed, they may be able to seek redress through the civil courts or the employment tribunals. However, before doing so employees are advised to discuss these issues with the Advisory, Conciliation & Arbitration Service (Acas) on 08457 47 47 47 or at www.acas.org.uk or to seek their own independent legal advice, through their trade union, from a local office of the Citizens’ Advice Bureau or from a local law centre.

Complaining to an employment tribunal

An employee can make a claim to an employment tribunal by completing a claim form, available from jobcentres, law centres and Citizens’ Advice Bureaux, or online at www.employmenttribunals.gov.uk. This will generally need to be done within a specified time limit.

You can complain to an employment tribunal if you are:

• an employee who has been dismissed or who has resigned in circumstances in which they consider they were entitled to resign because of the consequences or anticipated consequences of the transfer (see Part 4). An employee must complain within three months of the date when their employment ended. (The method of calculating this date is explained in Unfairly dismissed? available at www.berr.gov.uk/employment/employment–legislation/employment–guidance/page30728.html. It may be unclear whether claims should be made against the previous or the new employer. In such cases, employees should consider whether to claim against both employers;
• an elected or trade union representative, if the employer does not comply with the information or consultation requirements (see Part 5).

A representative must complain within three months of the date of the transfer;

• a representative or candidate for election who has been dismissed, or suffered detriment short of dismissal. A complaint must be made within three months of the effective date of termination (or, in the case of a detriment short of dismissal, within three months of the action complained of);
• a representative who has been unreasonably refused time off by an employer, or whose employer has refused to make the appropriate payment for time off. A complaint must be made within three months of the date on which it is alleged time off should have been allowed or was taken;
• an affected employee where the employer has not complied with the information or consultation requirements other than in relation to a recognised trade union or an elected representative. A complaint must be made within three months of the date of the transfer.

In any one of the above cases the tribunal can extend the time limit if it considers that it was not reasonably practicable for the complaint to be made within three months. Also, the time limits can be varied to allow for part or all of the statutory dispute resolution procedures to be used (for further detail, see the BERR guidance Resolving disputes at work: procedures for discipline and grievance).

• an employee who wishes to claim a redundancy payment. The application should normally be made within six months of the dismissal (see Redundancy entitlement – Statutory rights available at www.berr.gov.uk/employment/employment-legislation/employment-guidance/page15686.html).

If a representative complains to an employment tribunal that an employer has not given information about action proposed by a prospective new employer, and if the employer wishes to show that it was “not reasonably practicable” to give that information because the new employer failed to hand over the necessary information at the right time, the employer must tell the new employer that he or she intends to give that reason for non–compliance. The effect of this will be to make the new employer a party to the tribunal proceedings.

An employee must have at least 12 months’ continuous service before they can make a complaint of unfair dismissal for a TUPE–related reason. ¹⁴

Awards made by an employment tribunal

If complaints are upheld, awards may be made against the previous or new employer, depending on the circumstances of the transfer as follows:

• Unfair dismissal awards – Employment tribunals may order reinstatement or re–engagement of the dismissed employee if the complaint is upheld, and/or make an award of compensation. Further details are in Unfairly dismissed?
• Detriment awards – The employer may be ordered to pay compensation to the person(s) concerned. The compensation will be whatever amount the tribunal considers just and equitable in all the circumstances having regard for any loss incurred by the employee.
• Information and consultation awards – The defendants in consultation cases may be either the transferor or new employer, or both of them – the choice is for the complainant to make. Where either the transferor or the new employer is the sole defendant, he may seek to join the other employer to the case. Where joining occurs, both the transferor and the new employer are liable to pay compensation to each affected employee for a failure to consult.

In such cases, it will be a matter for the tribunal fairly to apportion the compensation between the two parties ¹⁵. The compensation cannot exceed 13 weeks’ pay. If employees are not paid the compensation, they may present individual complaints to the tribunal, which may order payment of the amount due to them. These complaints must be presented within three months from the date of the original award (although the tribunal may extend the time–limit if it considers that it was not reasonably practicable for the complaint to be presented within three months).

Q. Are there any procedures which a complainant may need to follow before making an application to the employment tribunal?

A. Yes, for some of the jurisdictions mentioned above. The Dispute Resolution Regulations came into force on 1 October 2004 giving new rights and responsibilities to both employer and employee. See "Resolving disputes at work: new procedures for discipline and grievance". If an employee does not follow the procedures laid out in the Regulations then a tribunal may not be able to hear the claim or the amount of any money awarded may be reduced.

(b) The right of the transferee employer to “employee liability information”

This entitlement is described in Part 5. If the transferor does not comply, then the new employer can present a complaint to an employment tribunal. If the tribunal finds in favour of the new employer it will make a declaration to that effect. Also, the tribunal may award compensation for any loss which the new employer has incurred because the employee liability information was not provided.

The level of compensation must be no less than £500 for each employee for whom the information was not provided, or the information provided was defective. So, if information was not provided for 10 of the transferring employees, then the minimum compensation would be £5,000. However, the tribunal may award a lesser sum if it considers that it would be unjust or inequitable to award this default minimum payment.

Q. When would the tribunal not award the minimum award of compensation because it was unjust or inequitable?

A. That would of course be a matter for the tribunal. But it might be fair to assume that trivial or unwitting breaches of the duty may lead to a tribunal waiving what would otherwise be a minimum award of compensation.