Industrial Tribunals Northern Ireland Decisions

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1248/11

1249/11

CLAIMANT: 1. John Gerard McCann

2. Jonathan McCann

RESPONDENTS: 1. Vector Facilities Management

2. Wallace Contracts (NI) Ltd

DECISION

DECISION ON A PRE-HEARING REVIEW (SECOND DECISION ON LEAVE TO AMEND CLAIM FORM)

(A) Each claimant has sought leave to amend his claim form so as to include a claim against the second-named respondent (“Wallace”) in respect of alleged failures to comply with the information and consultation duties which are contained in Regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations (“TUPER”) and in Regulation 13 of the Service Provision Change Regulations (“SPCR”). I have refused each of those applications for leave to amend.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Buggy

Appearances:

The claimant was represented by Mr B Copeland.

Vector Facilities Management (“Vector”) was represented by Mr T Sheridan of Peninsula Business Services.

Wallace was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

REASONS

1. At the end of the hearing, I announced my decision. At the same time, I gave oral reasons for that decision. Accordingly, what follows is by way of summary only.

2. These proceedings have to be treated as being brought by reference both to the Transfer of Undertakings (Protection of Employment) Regulations (“TUPER”) and by reference to the Service Provision Change Regulations (“SPCR”). In the context of the present proceedings, each relevant provision of TUPER has a practically identical counterpart in the SPCR. Accordingly, any reference below to a provision of TUPER should be read, unless the context otherwise indicates, as also incorporating a reference to the corresponding provision of SPCR.

3. In these proceedings, each of these two claimants also sought leave to amend his claim form so as include a claim against Vector in respect of alleged failures, on the part of Vector to comply with the information and consultation duties which are contained in Regulation 13 of TUPER and in Regulation 13 of SPCR. In each instance, I granted the leave to amend which was being sought. My written decision in respect of those grants of leave was issued on 6 January 2012.

4. The present Decision should be read in conjunction with that earlier Decision.

5. In relation to the applications for leave which are the subject of this Decision, I adopted, and had regard to, all of the matters which I regarded as being relevant in the context of the previous leave applications (as recorded in the January Decision). Having considered those matters, and having also paid regard, in particular, to the following two considerations, I decided not to grant leave, to either claimant, to pursue the information and consultation claims against Wallace.

6. First, I was satisfied that, during the pre-transfer phase, the transferee is not under any obligation to consult with those individuals who, prior to the transfer, are employed only by the transferor. I arrived at that conclusion on the basis of my own analysis of the wording and legislative context of Regulation 13 of TUPER. However, I note that substantially the same conclusion was arrived at by the Employment Appeal Tribunal in Amicus v City Building (Glasgow) LLP [2009] IRLR 253, especially at paragraph 60 of the judgment.

7. The implication of the foregoing is that no useful purpose will be served by permitting claimants to amend their application so as to include consultation claims against Wallace (because any such claims would be doomed to failure).

8. Secondly, I have concluded that the refusal of each relevant application for leave (the application for leave to amend the claim form so as to include information and consultation claims against Wallace) would not put the relevant claimant at any practical disadvantage. If there was a relevant transfer, Wallace has joint and several liability, alongside Vector, in respect of any compensation payable by Vector in respect of any declaration of any relevant Vector failure (any failure on the part of Vector to comply with Vector’s information and consultation duties). See Regulation 15(9) of TUPER and of SPCR.

Chairman:

Date and place of hearing: 11 January 2012, Belfast.

Date decision recorded in register and issued to parties:

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