Costs awarded in misconceived and unreasonable defence of proceedings

07 January 2013

Worthingtons consider a case in which the Respondent, on a misconceived basis, argued that TUPE applied when this was not the case.

In the case of Adrian Hines v Brinks Ireland Ltd the Claimant was awarded £51,281.52 in relation to an unfair dismissal arising from the sale of the business in which he was employed to another business.

The employee, Mr Adrian Hines was employed by Brinks Ireland Ltd from 19 November 2000 until his employment was terminated on 15 April 2011. In January 2011 Brinks became aware that it had lost the Bank of Ireland contract. It was unclear at that time as to whether the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) applied to the lost contract or whether the loss would result in redundancy. In either event Brinks believed that the employment contracts of three FLM Engineers including the Claimant would be affected. On 14 March 2011 the Claimant was informed by letter from Mr Mark Jordan (Human Resources Director) that TUPE applied to his contract of employment and stated that “We now believe that this is clearly a TUPE matter and have written formally to advise Bank Machine of this. Please note that if you choose not to transfer to the new contractor under the Transfer of Undertakings legislation you will not be entitled to claim any redundancy entitlement from Brinks. The reason for this is we now know TUPE applies, and your role is not redundant as it will transfer to the new contractor”.

It was clear to the Tribunal that the Claimant had concerns about whether or not TUPE applied and he was one of a number of employees who continued to raise queries with Brinks as to whether TUPE applied. No reasons were given save that they continued to state they had taken legal advice and that is what they were relying on and therefore TUPE applied. At a further meeting the Claimant was informed that the “company is clear on it’s position, in view of advice given that TUPE applies” and “All I can reiterate is that the company are clear that TUPE applies in their view”.

Brinks steadfastly maintained the view that TUPE applied and was at this time in regular and ongoing contact with RMS, the new contractor, who remained firmly of the view that TUPE did not apply.

Notwithstanding this the Claimant’s contract of employment was terminated on 15 April 2011 and, contrary to the express indication by RMS, the Claimant was advised to report to RMS on 18 April 2011. The Claimant was given no indication of the position being adopted by RMS and was surprised, embarrassed and humiliated when told by RMS on the morning of 18 April 2011 to leave their premises.

Brinks entered a response denying liability on the basis that TUPE applied. This response gave no reasoning as to why this was being asserted and to why TUPE applied and it consisted of little more than a chronology of correspondence and discussions. The Tribunal found this surprising particularly so given the size of the company and the resources available to it. The response entered by RMS stated that there was a deal between the Bank of Ireland and RMS (Bank Machine) was not a transfer of a business but an outright sale of the ATM machines from one provider to the other.

The Tribunal found it surprising that both Respondents were represented by the same representatives at Tribunal especially bearing in mind that they had both differing views as to whether or not TUPE applied. At no time did Brinks give any reasoning, detailed or otherwise, as to why it formed the view that TUPE applied. Without this the Tribunal held that TUPE did not apply and indeed the Tribunal held that the Claimant was unfairly dismissed because of the mistaken belief that TUPE applied.

It was also noteworthy that since 13 June 2012 the Respondent’s case changed and it was their position that the Claimant was now being dismissed by reason of redundancy yet they did not give him or pay him any redundancy. The Tribunal had no hesitation in awarding £51,281.52 which included nine months future loss of salary and an uplift of 50% that no procedures were followed whatsoever. The Tribunal also awarded costs in the sum of £4,000 plus VAT and outlay in relation to this case because Brinks’ defence of these proceedings was from the outset misconceived and unreasonable.

The Tribunal considered that in all the circumstances of this case including the fact that Brinks is part of a global organisation with a significant presence in Northern Ireland, the response of Brinks was considered flippant and demonstrated its unwillingness to meaningfully consider or engage on any level with arguments from numerous informed parties regarding the applicability of TUPE.  

Maxine Orr is a Partner with Worthingtons Solicitors and is head of the Employment law department.   Should you have any queries in relation to this article, please submit your enquiry in the form below and a member of our Employment team will be happy to contact you.

 

 

 

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