Cases→2213187/2023

Claimant v W1 Hardware Limited

8 May 2025Before Employment Judge McAvoy NewnsLondon Centralremote video

Outcome

Claimant fails

Individual claims

Otherfailed

The tribunal determined as a preliminary issue that the claimant's employment did not transfer to the respondent pursuant to TUPE Regulation 3(1)(a). The respondent did not acquire FS Blake (which was purchased via share sale by two individuals) and did not assume day-to-day control of the business. The respondent merely payrolled the claimant temporarily while FS Blake set up PAYE facilities. Without a valid TUPE transfer, all claims against the respondent must fail as there was no employment relationship.

Facts

The claimant was employed as Retail Manager at Blakes of Belgravia hardware store from January 2020. In January 2023, the business owner (FS Blake) was sold via share purchase to two individuals, not to the respondent company. The respondent temporarily payrolled the claimant from January to March 2023 while FS Blake set up PAYE facilities. The claimant was signed off sick from late February 2023 and issued a P45 in March 2023 naming the respondent as employer. The claimant brought claims believing his employment had transferred to the respondent under TUPE.

Decision

The tribunal dismissed all claims, finding no TUPE transfer occurred. The respondent did not acquire FS Blake or assume day-to-day control of the business. The respondent merely provided temporary payroll services. The tribunal declined to add the actual employer (FS Blake) as a respondent at this late stage, finding it not in the interests of justice given the two-year delay and the claimant's legal representation throughout.

Practical note

Temporary payroll arrangements during a transitional period following a share sale do not, without more, constitute a TUPE transfer of employment; day-to-day operational control must genuinely transfer to the alleged new employer.

Legal authorities cited

Print Factory (London) 1991 Ltd v Millam [2007] ICR 1331ICAP Management Services Ltd v Berry and anor [2017] IRLR 811Jackson Lloyd Ltd and anor v Smith and ors EAT 0127/13Brookes and ors v Borough Care Services Ltd and anor [1998] ICR 1198

Statutes

TUPE Regulation 3(1)(a)Tribunal Rules of Procedure Rule 35Employment Rights Act 1996 s.218

Case details

Case number
2213187/2023
Decision date
8 May 2025
Hearing type
preliminary
Hearing days
2
Classification
contested

Respondent

Name
W1 Hardware Limited
Sector
retail
Represented
Yes
Rep type
lay rep

Employment details

Role
Retail Manager
Service
3 years

Claimant representation

Represented
Yes
Rep type
barrister
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