On the 1st April 2019, Mr Ian Cain, Goldsmith Chambers’ Common Law Pupil, successfully represented 2 former dockyard workers on a pro-bono basis in their Employment Tribunal in Southampton for unlawful dismissal and a breach of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The Claimants were employed as shunters at a dockyard by the 1st Respondent (R1). R1 alleged that there was a TUPE transfer of the employment of the Claimants to the 2nd Respondent (R2) when the contract between R1 and the owners of the dockyard was terminated. R2, a company in liquidation, denied that there was a TUPE transfer as they did not enter into a contract with the dockyard owners to take over the work conducted by R1.
On the date of the alleged TUPE transfer, the Claimants lost their employment as neither Respondent accepted liability for their employment. Supported by Havant Citizen’s Advice Bureau, the Claimants brought unlawful dismissal proceedings against both Respondents. Mr Cain highlighted to the Tribunal that it was not a question as to whether the Claimant’s had been unlawfully dismissed, but rather which Respondent was liable.
Due to their liquidation, the claim against R2 had been stayed and permission had not been sought from the administrator to continue the claim against then. Therefore, Mr Cain had to argue that there was no TUPE transfer of the Claimants’ employment and R1 should be liable for their unlawful dismissal.
In the Judgment of the Tribunal, Employment Tribunal Judge Wright agreed with Mr Cain’s submissions that there was no TUPE transfer from R1 to R2. Therefore, the Claimants’ claims succeed against R1. The Claimants were awarded the statutory redundancy award, loss of wages, loss of statutory industrial rights and payment in lieu of untaken holiday at the date of termination resulting in a total award of over £30,000.
Related barristers: Ian Cain
