Employment Cases Update

Ferguson and others v Astrea Asset Management Ltd UKEAT/0139/19/JOJ

Date published: 20/05/2020

Appeal against certain of the ET’s findings on the interpretation of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Appeal allowed in part.

The Claimants were directors of a business that was transferred to a new business, the Respondent. Shortly before the transfer, they awarded themselves bonuses and generous termination payments. The Respondent dismissed the First and Second Claimants for gross misconduct by way of dishonesty, and did not accept that the Third and Fourth Claimants transferred under TUPE. The Claimants brought proceedings in the ET for unfair dismissal, contractual termination payments on the basis of the new contracts, and "compensation payments" for breach of regulation 13(4) of TUPE. The ET found that: the First Claimant was unfairly dismissed; the Second Claimant was unfairly dismissed but his award was "reduced by 100% for conduct"; the Third and Fourth Claimants were not assigned to the relevant grouping of employees and so did not transfer under regulation 4(1) of TUPE; the terms of the new contracts relating to bonus, termination payment and notice were void; and the Respondent should pay each of the Claimants three weeks' pay for breach of regulation 13(4) of TUPE. The Claimants appealed on the grounds that (1) the ET was wrong to find that the new contractual terms were void; (2) the ET should have found that the Third and Fourth Claimants were assigned to the relevant grouping of employees; (3) the ET was wrong to find that the Second Claimant had caused or contributed to his dismissal; and (4) the ET should have awarded the maximum 13 weeks' pay for the breach of regulation 13(4).

The EAT held that the ET had adopted the wrong approach to whether the Third and Fourth Claimants were assigned to the relevant grouping of employees, and that it had made no express findings on causation in relation to whether the Second Claimant had caused or contributed to his dismissal. Accordingly, these matters would be remitted to the same ET for reconsideration, and the other grounds of appeal would be dismissed.

Read the full text of the judgment on BAILII or download the file by clicking the link below.