Howard v Millrise Ltd, EAT

Lack of TUPE reps leads to protective award

Howard started working at Millrise in March 2002. On 15 April 2003, he was given one month’s written notice of dismissal on the grounds of redundancy. On 30 April 2003, Millrise (in liquidation) transferred to SG Printers. Negotiations for the transfer had taken place throughout April. Howard’s employment terminated on 14 May 2003.

Howard complained to the tribunal that he had been automatically unfairly dismissed, and that his employer had failed to adequately consult with him in respect of the business transfer.

His claim for automatic unfair dismissal was successful, but the tribunal rejected his complaint of failure to consult on the grounds that the TUPE (Transfer of Undertakings and Protection of Employment) regulations and provisions covering failure to consult with an appropriate union or employee representative did not apply where there were no such representatives, as in Howard’s case.

Howard successfully appealed. The EAT overturned the tribunal’s decision with regard to the protective award. It also ruled that where neither union nor employee representatives exist, failure to take any steps to invite the election of representatives, followed by a failure to inform and consult on an individual basis, can give rise to a claim for a protective award which can be pursued by the individual employee affected.

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