Employment Tribunal Upholds Claims for Unfair Dismissal and Redundancy Payments

OUTCOME: Allowed

ETZ4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case Nos: 2500082/2024, 3313009/2023, 1406313/2023, 1406310/2023 & 3313056/2023 Hearing at Glasgow on 16 and 17 February 2026 Employment Judge: [NAME] (1) [NAME] Claimants In Person (via CVP) (2) Mr [NAME] (3) Mr [NAME] (4) Mr [NAME] (5) Mr [NAME]

2500082/2024 & Others Page 2 [COMPANY] Respondent Represented by Mr [RESPONDENT] Consultant

JUDGMENT OF THE EMPLOYMENT TRIBUNAL The Judgment of the Employment Tribunal is that the claimants’ claims against the respondent all succeed, and that the respondent is ordered to pay to the claimants the following sums: (1) [NAME]: a total sum of Six Thousand Nine Hundred and Seven Pounds and Eighty Seven Pence (£6,907.87); (2) [NAME]: a total sum of Six Thousand Six Hundred and Sixty Six Pounds and Fifty Two Pence (£6,666.52); (3) [NAME]: a total sum of Four Hundred and Nine Pounds and Seventy One Pence (£409.71): (4) [NAME]: a total sum of Ten Thousand Six Hundred and Twenty One Pounds and Sixty Seven Pence (£10,621.67); and (5) [NAME]: a total sum of Six Thousand Five Hundred and Sixty Five Pounds and Fifty Six Pence (£6,565.56).

REASONS 1. The claimants each presented claims to the Employment Tribunal in which they complained that they had been unfairly dismissed, wrongfully dismissed, unlawfully deprived of holiday and redundancy pay, and that the respondent failed to inform and consult contrary to Regulations 3, 4 and 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

2. The respondent submitted ET3 responses in respect of each claimant.

3. The claims as originally presented included a number of claimants whose claims have since been resolved, so that this Hearing only related to the 5 claimants, namely [NAME] and [NAME].

2500082/2024 & Others Page 3 4. A final Hearing was listed to take place on 16 to 20 February 2026 in the Employment Tribunal, Glasgow, by hybrid means, whereby the claimants, with the exception of Mr [NAME], were permitted to attend by CVP in order to reduce the likely expense of having to travel to Scotland for the Hearing. Mr [NAME] attended on the first day of the Hearing, having understood that his solicitor would be in attendance as well. However, it turned out that this was a misunderstanding, which was resolved by Mr [NAME] on the first day, and with the Tribunal’s permission he attended on the second day by CVP from home.

5. Mr [COUNSEL] appeared for the respondent.

6. Each of the witnesses gave short evidence relating only to those claims which were relevant to them.

7. The respondent called one witness, namely [RESPONDENT], the respondent’s Human Resources Business Partner.

8. The respondent helpfully provided a substantial Bundle of Productions to which reference was made throughout the Hearing by both parties and the Tribunal.

9. At the conclusion of the Hearing, the respondent’s submission was essentially that the claimants should receive awards in relation to redundancy payment, notice payment and loss of statutory rights, but no compensatory awards in respect of unfair dismissal. This was helpful to the Tribunal, and narrows the focus of this Judgment. They did not expressly accept that the claims of unfair dismissal should succeed. 10.The claimants all accepted that they were probably not entitled to holiday pay, in turn, though I deal with this below. 11.Based on the evidence led and the information available, the Tribunal was able to find the following facts admitted or proved. I should make clear that I have only cited the findings relevant to the claims made and to the issues arising in this Hearing. I do not intend to rehearse all of the details of these claims, largely because, without expressly admitting liability, the respondent accepted that they were liable for unfair dismissal and for the redundancy and notice payments claimed by the claimants (except in relation to Mr [NAME], who lacked the necessary qualifying service, in their view, for unfair dismissal or redundancy payment claims). The findings are therefore relatively concise. Findings in Fact

2500082/2024 & Others Page 4 12.The claimants were employed by the respondent as Drivers, over varying terms of employment. The respondent is a [COMPANY], and for 8 years held the contract to provide final mile delivery services to [COMPANY] ([NAME]). Drivers and, where appropriate, Porters or Drivers’ Mates, would deliver items to customers’ houses, and if required take the items into their houses. The respondent opened dedicated [NAME] sites in Crawley, Ipswich, Gateshead, Glasgow and Bristol. 13.The respondent provided approximately 80% of the final mile delivery service to [NAME]. 14.On 29 September 2023, [NAME] entered administration, and was sold by way of Pre-Pack Administration to [COMPANY], an [COMPANY]. As a result, the employees of [NAME] were transferred to the employment of [RESPONDENT] under TUPE. 15.On 30 September 2023, the respondent was unaware that [NAME] had gone into administration, and thus carried out deliveries on that date which they had previously collected from [NAME]. At 5pm on that date, the respondent was informed of the administration and were advised not to carry out further deliveries. Beyond that date, no further deliveries were carried out by the respondent for [NAME] or their successors. 16.On 3 October 2023, the claimants were asked to attend at their respective sites and were advised that [NAME] had gone into administration and had been bought over by [COMPANY]. The details of what was said to the staff on that day were set out in a letter sent to them (95): “I am writing to confirm the details of our meeting on Tuesday 3rd October 2023. As discussed, [NAME], our largest [NAME] contract is under new ownership. For the first week, Tuesday 03rd October – Saturday 7th October 2023 a handover takes place and whilst this goes on [NAME] will not be trading. Consequently, during this handover, [NAME] will not be delivering and as such we need to temporarily layoff your role with immediate effect from 03rd October until further notice. It may be that in the week after the first week, volumes could be low which would require us to continue the layoff. Please be assured that the Company is doing everything possible to secure further work, and we will contact you on a regular basis to inform you of the ongoing situation. You are entitled to receive ‘Statutory Guarantee Pay’ of £31 a day for the first five workless days in any three month period or 3 days if you work part time and the company will make these payments to you in the same way as we would have paid your wages.

2500082/2024 & Others Page 5 During the period of temporary layoff, you remain an employee of the Company and as such you must hold yourself available for work should volumes pick up…” 17.On 9 October 2023, the respondent wrote to the claimants again (96) to advise that limited negotiations had taken place with the new owners of [NAME], but that these had not led to a satisfactory agreement between the parties at that stage. This meant that the layoff would continue. 18.On 16 October 2023, the respondent wrote to the claimants (98) to advise that negotiations had not yet led to a satisfactory agreement between the parties, and that the layoff would continue. 19.On 17 October 2023, the respondent wrote to the claimants (99) in different terms: “I am writing to confirm that as you are aware, [NAME] went into administration and was bought by [NAME]. This took effect from Friday 29th September 2023. Following our negotiations with [NAME], [NAME]’s contract for the provision of our DUO delivery service for [NAME] has come to an end and, on its termination, those services will be performed by [NAME]. We believe that the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply to this situation. As an employee of [NAME] who has performed the majority of your work delivering for or servicing for [NAME], you are directly affected with this Transfer of Undertakings (Protection of Employment) Regulations 2006…” 20.The letter went on to describe the employee liability information which the respondent required to gather and disclose about the claimants and affected employees. 21.Towards the conclusion of the letter, it was stated: “On Tuesday 17th October 2023 at 20:00 the dedicated [NAME] night team will no longer be employees of [NAME]. At 06:30 Wednesday 18th October 2023 the dedicated [NAME] day team will no longer be employees of [NAME]. At these times and dates you will be transferred from the employee of [NAME] to the employ of [NAME]. [NAME] has a duty to consult and call you as to where to report to work on your first day of employment.” 22.Each of these letters was composed and issued by [APPELLANT], HR Business Partner. 23.When Mr [NAME], one of the claimants, emailed Mr [NAME] on 17 October 2023 to ask what this meant, Mr [NAME] replied (106) to advise that

2500082/2024 & Others Page 6 [NAME] was no longer his employer, and that his contract had passed over to his “new employer”, [NAME], in a TUPE transfer. 24.Mr [NAME] sent two further emails to Mr [NAME] (107 & 108), to which Mr [RESPONDENT] replied to reaffirm the respondent’s position, and to confirm that he understood that [NAME] were not communicating with the claimants as they should. 25.Having obtained the name of a contact at [NAME], Mr [NAME] emailed [NAME] on 18 October. She replied (111): “It is not the case that your employment transferred to [COMPANY] under the Transfer of Undertakings (Protection of Employment) Regulations 2006 on 18 October 2023. We understand that [NAME] had a supply contract with [NAME]. [COMPANY] did not take over this contract when it purchased the asserts of [NAME], and the contract was terminated. …Therefore, your contact of employment remains with [NAME] and we suggest you contact them for any notice or redundancy payments that you may be entitled to if it is the case that your contract of employment has been terminated. I understand that this will be disappointing to hear, and I appreciate this is very difficult time for you. We are not responsible for your salary payment, or any costs connected with termination of employment and suggest you speak to [NAME].” 26.An email in the same terms was sent by [NAME] of [NAME] on 1 November 2023 (120). 27.The claimants felt that they were in a difficult position and decided to raise proceedings before the Employment Tribunal. 28.A Hearing took place before the Tribunal on 17, 19 and 20 June 2025, following which a Judgment was issued (20), that there was no relevant transfer under Regulation 3(1)(a) or 3(1)(b) of TUPE. As a result, [COMPANY] were dismissed from these proceedings. Individual Claimants (1) [NAME] 29.Mr [NAME], whose date of birth [DATE], and who was therefore aged 40 when his employment was terminated by the respondent, presented his claim to the Employment Tribunal on 17 January 2024 (45). He notified ACAS of his intention to submit a claim to the Tribunal against

2500082/2024 & Others Page 7 the respondent on 21 December 2023 (43) and was sent the Early Conciliation Certificate by ACAS on the same date. 30.He commenced employment with the respondent on 9 July 2019 as a [NAME], based at the respondent’s Gateshead Hub. His main duties were delivering [NAME] products to customers, though he also carried out deliveries for the Soho part of the respondent’s business, including bicycles and garden furniture. He carried out duties on the [NAME] for at least 75% of his time. 31.After it became clear to Mr [NAME] that he was not to be transferred to the employment of [COMPANY], he contacted his supervisor to ask about alternative work, but was never offered any such work. He did not look for alternative work elsewhere as his mental health suffered, but secured self- employed work with [NAME] in April 2026. He attributed the delay in seeking alternative employment to stress and anxiety which he was suffering. He applied for and received Employment Support Allowance, submitting medical certificates in support of his application. 32.Mr [NAME] accepted that he was not due any holiday pay from the company. 33.His schedule of loss was set out at 157. (2) [NAME] 34.Mr [NAME], whose date of birth [DATE] and who was therefore aged 43 when he was dismissed by the respondent, presented a claim to the Employment Tribunal on 6 November 2023 (205). He notified ACAS of his intention to make a claim to the Tribunal on 2 November 2023 (204) and received the Early Conciliation Certificate from ACAS on 4 November 2023. 35.Mr [RESPONDENT] commenced employment with the respondent on 11 May 2021, and his employment was terminated by them on 17 October 2023. He worked as a [NAME], primarily on Tuesday to Friday, and covered the warehouse on Saturdays, based at the respondent’s [NAME]. 36.He returned from a period of sick leave to work on 3 October 2023, only to be told by his line manager [NAME] that [NAME] had gone into administration and therefore he was being laid off. He did not carry out any further work for the respondent until his employment was terminated on 17 October 2023. 37.Mr [NAME] was of the view that his employment did not terminate on 17 October 2023 and therefore that he was still employed by the respondent. 38.Mr [RESPONDENT] confirmed that he is not making a claim in relation to holiday pay.

2500082/2024 & Others Page 8 39.Following the termination of his employment Mr [NAME] did not take any steps to find alternative employment as he understood that he was being transferred under TUPE to the employment of [COMPANY]. He became his wife’s full time carer as she is disabled, and continues to carry out this role full time to the date of this Hearing. (3) [NAME] 40.Mr [NAME], whose date of birth [DATE], and was therefore aged 43 when his employment was terminated by the respondent on 17 October 2023, presented his claim (341) under the claim of lead claimant [APPELLANT] (328) on 19 December 2023. The claimants had notified ACAS of their intention to make claims against the respondent on 20 October 2023 (327) and received the Early Conciliation Certificate from ACAS on 1 December 2023. 41.Mr [NAME] continuous employment for the purposes of this claim began with the respondent in May 2023. He accepted that he had less than 2 years’ continuous employment with the respondent as at the date of termination of his employment on 17 October 2023. 42.He was employed as a [NAME], working 75% of his time on the [NAME]. He maintained that it was less than that, but in my judgment the finding of the earlier Tribunal is accurate to this effect. 43.He started looking for work approximately 1 year after the termination of his employment by the respondent, and secured work with [NAME], a company based in his local area, in Caerphilly, carrying out deliveries from approximately May 2024. (4) [NAME] 44.Mr [NAME], whose date of birth [DATE], and was therefore aged 56 when his employment was terminated by the respondent on 17 October 2023, presented his claim (340) under the claim of lead claimant [APPELLANT] (328) on 19 December 2023. The claimants had notified ACAS of their intention to make claims against the respondent on 20 October 2023 (327) and received the Early Conciliation Certificate from ACAS on 1 December 2023. 45.He commenced employment with the respondent on 24 November 2015 as a [NAME] based in the respondent’s [NAME]. He carried out deliveries and led a crew of drivers, working at least 75% of his time on the [NAME].

2500082/2024 & Others Page 9 46.Mr [NAME] wrote to [NAME] of [NAME] on 25 October 2023 to inquire as to his employment situation (393). [NAME] replied on 1 November 2023 (392) to advise that his employment had not transferred to [COMPANY] on 18 October 2023 as he had asserted. 47.Mr [NAME] described his mental health (caused by stress and anxiety relating to the sudden ending of his employment) as being “through the roof”. He was treated by his GP and local mental health team. He was unable to find any employment. He received Universal Credit and invalidity benefits. He had not found employment as at the date of the Hearing as he felt unable to do so. 48.On 23 October 2023, Mr [NAME] wrote (in the name of his wife, who assisted him throughout with the correspondence) to the respondent seeking voluntary redundancy (385). He received no reply. 49.Mr [NAME] considered that he had 12 days’ holiday outstanding as at the date of termination of his employment. However, it appears that this was on the basis that his employment would have continued for the remainder of his full holiday year. His entitlement would only be for holiday pay relating to annual leave accrued but untaken as at the date of termination of his employment, and there is no basis upon which it can be found that he would have any outstanding entitlement to holiday as at that date. (5) [NAME] 50.Mr [NAME], whose date of birth [DATE], would have been 46 as at the date of termination of his employment by the respondent. He presented his claim to the Employment Tribunal on 8 November 2023 (257), having notified ACAS of his intention to make a claim to the Tribunal on what appeared to be 3 November 2023 (256 – the date is obscured, however) and received the Early Conciliation Certificate from ACAS on 8 November 2023. 51.Mr [RESPONDENT] commenced employment with the respondent on 17 August 2021, and his employment was terminated on 17 October 2023. He worked as a [NAME], but also as a [NAME], based at the [NAME]. He worked at least 75% of his time on the [NAME]. 52.Initially, at the point when his employment terminated, he was advised by the respondent that he did not need to seek alternative employment as [COMPANY] would take over his employment. He suffered from very poor mental health thereafter, and though he has sought alternative employment, he has not succeeded in securing another job.

2500082/2024 & Others Page 10 53.He was uncertain about whether or not he was owed any holiday pay by the respondent. I have concluded (678) that he was not entitled to any outstanding holiday pay on termination of his employment. Submissions 54.Mr [RESPONDENT] provided a written submission on behalf of the respondent. Each of the claimants simply invited the Tribunal to find in their favour. 55.Submissions were taken into account in reaching the decisions which are set out below. Discussion and Decision 56.These cases arise out of unusual circumstances, and the respondent’s position was slightly awkward, in that they had proceeded in October 2023 on the basis that TUPE would apply to the claimants, only to receive a Tribunal Judgment dated 26 June 2025 concluding that TUPE did not, as a matter of fact and law, apply. 57.I found Mr [NAME] to be an open, straightforward and honest witness who was clearly placed in a difficult position by that Judgment, but who sought to explain plainly the views taken by the respondent at the time and before this Tribunal. 58.The claimants were each entirely honest and believable in their evidence. 59.In my judgment, the respondent, while not formally conceding that the claimants were unfairly dismissed, did concede that they were entitled to notice pay and redundancy payments (with the exception of Mr [NAME]). Mr [NAME] sought to walk rather a fine line in his submission by declining to concede that the claimants were unfairly dismissed, but appeared to acknowledge that there was a risk that the Tribunal would find that they were, when he stated that there were some problems with the respondent’s consultation in relation to the claimants. He would not accept, however, that the respondent had completely failed to consult with the claimants. 60.It is my judgment that the claimants are all, as the respondent conceded, entitled to notice and redundancy payments (where applicable). I set out the calculations below. 61.With regard to the question of unfair dismissal, it is my judgment that the respondent failed to consult adequately with the claimants in relation to the redundancy situation which had undoubtedly arisen in October 2023. While I am not unsympathetic to the situation in which they found themselves, I

2500082/2024 & Others Page 11 require to deal with the reality of the circumstances presented to the claimants. 62.In light of the failure to consult with the claimants, it is my judgment that they are entitled each to a finding that they were unfairly dismissed. There was no warning to them that they were to lose their employment, and while there was a period of layoff, they were informed on 17 October 2023 that their employment with the respondent had ended. That was on the erroneous basis that their employment would transfer under TUPE to [COMPANY]. 63.However, I am persuaded that the compensation to be awarded to the claimants must be very limited, since had a fair procedure been followed, they would have been made redundant within a period of approximately 4 weeks following 17 October 2023. There is no basis upon which it can be found that the respondent unreasonably failed to offer them suitable alternative employment, nor that they should have had a wider pool for selection (not that that appeared to be the claimants’ case in any event). The loss of the [NAME] at such short notice was plainly a critical moment for the respondent, and there is no evidence that they could have continued to employ any of the claimants before me. 64.As a result, I make the following awards to the claimants: [redacted] 65.The claimant is entitled to receive a redundancy payment. The respondent calculated this as £2,413.47, and invited the Tribunal to make such a payment to the claimant. The Tribunal is prepared to accept this, notwithstanding the lack of detailed calculation of this figure. 66.The claimant is also entitled to receive a notice payment, and the respondent invited the Tribunal to award the sum of £1,775.29 in this regard, which the Tribunal is prepared to accept. 67.The claimant was unfairly dismissed, and the respondent accepts that an award of £500 for loss of statutory rights is appropriate. In my judgment, this is correct. 68.The respondent disputes that the claimant is entitled to any further compensatory award, on the basis, as I understand it, that he would have been made redundant, following a fair procedure, in any event. Also, they argue that he has not made reasonable efforts to mitigate his losses. 69.In my judgment, the reason why the claimant did not make efforts to mitigate his losses was because of the impact of the unexpected

2500082/2024 & Others Page 12 termination of his employment upon him. However, I am persuaded that the respondent was left in the position that they required to address the sudden loss of the [NAME], and in my judgment, the claimant would have been made redundant, following a fair procedure, within 4 weeks of 17 October 2026. 70.He is therefore entitled to a compensatory award of £1,775.29, calculated on the same number of weeks as the notice pay. 71.In total, therefore, the respondent is ordered to pay to Mr [RESPONDENT] the total sum of £6,464.05. (2) [RESPONDENT] 72.Going again on the figures which the respondent invited me to award to Mr [APPELLANT], the claimant is entitled to receive a redundancy payment of £2,172.12. 73.He is also entitled to receive a notice payment of £1,775.29. 74.Mr [NAME] is awarded a sum in respect of loss of statutory rights of £500. 75.Finally, Mr [NAME] is entitled to a sum of £1,775.29 in respect of a compensatory award, on the same basis as Mr [NAME], namely that he would have been made redundant within a 4 week period had he not been dismissed on 17 October 2023. 76.In total the respondent is ordered to pay to Mr [RESPONDENT] the sum of £6,222.70. (3) [NAME] 77.Mr [NAME] lacks the necessary qualifying service upon which to base a claim of unfair dismissal. He sought to argue before this Tribunal that he had never been dismissed, but had been transferred under TUPE. In fact, this submission is incorrect, and accordingly I have found that he, like the other claimants, had their employment terminated by the respondent on 17 October 2023. 78.He is not entitled to any award other than that of notice pay, which amounts to £409.71. 79.The respondent is therefore ordered to pay to Mr [RESPONDENT] the total sum of £409.71. (4) [NAME] 80.Mr [NAME] is entitled to a redundancy payment of £5,792.32.

2500082/2024 & Others Page 13 81.He is also entitled to receive a notice payment of £2,110.24. 82.Further, Mr [NAME] is entitled to payment of £500 by way of loss of statutory rights. 83.Finally, Mr [NAME] is entitled to compensatory award of £1,775.29, on the same basis as Mr [NAME] and Mr [NAME], that he would have been made redundant within 4 weeks had a proper procedure been followed by the respondent. 84.The respondent is therefore ordered to pay to Mr [RESPONDENT] the total sum of £10,177.85. (5) [NAME] 85.Mr [NAME] is entitled to a redundancy payment of £2,110.24. 86.Mr [NAME] is also entitled to a notice payment of £1,757.92. 87.Further, a payment of £500 for loss of statutory rights is due to Mr [NAME]. 88.Finally, Mr [NAME] is entitled to a compensatory award of £1,757.92, based on the same reasoning as the other claimants [NAME], [NAME]. 89.The respondent is therefore ordered to pay to Mr [RESPONDENT] the total sum of £6,126.08. 90.I have given consideration to the submission on behalf of the claimants that there was a complete failure by the respondent to follow the ACAS Code of Practice in that no proper procedure was carried out or even attempted by the respondent in terminating their employment contracts. 91.In my judgment, this is a well-made point. It is just and equitable to take into consideration the complete failure by the respondent to carry out any form of consultation with the claimants in advance of their being told that their employment with them had come to an end. The explanation for this – that they understood that the claimants would be TUPE transferred to [COMPANY] – cannot bear scrutiny. That may have been their understanding at the time, and an explanation for how they acted, but they were wrong, and the Tribunal found them to be wrong. 92.As a result, I consider that an uplift of 25% is due in relation to the compensatory awards made in relation to unfair dismissal by the respondent, and therefore the final figures to be awarded to each of the claimants are as follows:

2500082/2024 & Others Page 14 93.Mr [NAME]: with the addition of £443.82, a total sum of £6,907.87; 94.Mr [NAME]: with the addition of £443.82, a total sum of £6,666.52; 95.Mr [NAME]: no uplift is appropriate for his award; 96.Mr [NAME]: with the addition of £443.82, a total sum of £10,621.67; and 97.Mr [NAME]: with the addition of £439.48, a total sum of £6,565.56. 98.In relation to Mr [NAME] and Mr [NAME], the Recoupment Regulations apply to the compensatory award for the period of 17 October to 14 November 2023. The prescribed element is compensatory award for each, without the 25% uplift. 99.The claimants’ claims therefore succeed. 28 April 2026 ______________________ Date sent to Parties