Ms Heather McCann, 48, commenced employment with Pie Bob’s in Arbroath in 1988. She worked for the bakery for 23 years until she was dismissed from her employment after the business ceased trading. She subsequently sought advice from employment law solicitors and submitted a claim for unfair dismissal and breach of contract in the Employment Tribunal.
Problems started for the bakery after it was bought by Neil Elford in 2002. The business was expanded and turned into a takeaway, bakery and restaurant. However, the recession hit the business and in 2011 the owners were advised by a specialist insolvency practitioner that the business should close. The insolvency practitioner recommended that the business should be liquidated but advised that it would cost between £6,000 and £10,000 to do so. The owners could not afford this and therefore decided to close the business and reopen the bakery under a new name, “PB’s Takeaway” (but using all the existing equipment). Former employees were invited to reapply for their jobs but Ms McCann was unsuccessful in her application. She was dismissed without notice in 2011 and claimed that her employment should have transferred to her new employer when the business was shut down under the Transfer of Undertakings (Protection of Employment) Regulations 2002 (“TUPE regulations”).
Under the TUPE regulations when a part or a whole of a business is transferred to another business all assets and liabilities which are attached to that (part of that) business should also be transferred. This includes employment contracts.
The Employment Tribunal ruled that Ms McCann had been unfairly dismissed from her job. Under TUPE her employment contract should have been transferred to the new business. By dismissing her for redundancy her employer had failed to transfer her contract to the new business and had therefore automatically unfairly dismissed her. The Employment Tribunal awarded her £5,522 for her unfair dismissal and £1,685 for breach of contract (as her employer had failed to pay her the correct notice pay upon termination of the contract of employment.
Neither Ms McCann nor her former employers commented on the case after the Employment Tribunal judgment released. It is believed that in the circumstances it may be difficult for Ms McCann to recover all of the monies owed to her.