Appeal No. UKEATS/0057/10/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 16 June 2010

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR M KEENAN
MRS G SMITH

MS SHEENA TODD	APPELLANT

1) MS M J STRAIN & OTHERS
2) CARE CONCERN GB LTD
3) MR R DILLON & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR RODDY McILVRIDE
(of Counsel)
Instructed by:
Messrs Anderson Fyfe Solicitors
72 Gordon Street 
Glasgow
G1 3RN
	
For the First Respondent

For the Second Respondent

For the Third Respondent	MR CHRIS McDOWALL
(Solicitor)
Messrs Anderson Strathern Solicitors
24 Blythswood Square
Glasgow
G2 4BG

MR IAN MacLEAN
(Consultant)	
Peninsula Business Services Ltd
Delphian House, Riverside,
New Bailey Street
Manchester
M3 5PB	Delphian House
	Manchester
MR ROBERT DILLON 
(On his own behalf and on behalf of other claimants)
	35 Cloch Road

		
SUMMARY

TRANSFER OF UNDERTAKINGS – Consultation and other information

Seller of care home business gave some limited information to employees about impending transfer but failed to arrange for election of “appropriate representatives” as required by reg. 14 of Transfer of Undertakings (Protection of Employment) Regulations 2006 and accordingly gave no information to, and did not consult with, any such representatives.

Tribunal finds breaches of regs. 13 (2) and (6), as well as reg. 14, of TUPE and orders transferor to pay 13 weeks pay, being the maximum compensation in accordance with reg. 15: but makes no award against transferee.

HELD:

(1)	Tribunal’s finding of liability against transferor upheld – Contention that there was no duty to inform under reg. 13 (2) unless transferor were envisaging “measures” on which it was necessary to consult under reg. 13 (6) rejected – Institution of Professional Civil Servants v Secretary of State for Defence [1987] IRLR 373 followed 

(2)	Wrong in principle to award maximum compensation in circumstances where some (though inadequate) information had been given and the measures requiring consultation were of very limited significance – Award of seven weeks pay substituted

(3)	Tribunal was obliged by reg. 15 (9) to find transferee jointly and severally liable with transferor. 

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1.	The Appellant was until 4 January 2008 the owner of a care home called Marchmont House in Port Glasgow.  On that date the sale of the business to the Second Respondent, Care Concern (GB) Ltd (“Care Concern”), was completed.  The sale gave rise to a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).  Some 32 employees at Marchmont House brought proceedings in the Employment Tribunal under reg. 15 (1) of TUPE against both the Appellant and Care Concern complaining of breaches by the Appellant of her obligations under regs. 13 and 14, for which it was said that Care Concern was also liable by reason of the terms of reg. 15 (9).  

2.	The Claimant’s claims were heard by an Employment Tribunal sitting at Glasgow between 9 and 11 February 2009 chaired by Employment Judge Bolland QC.  Four of the most senior employees, including the manager of Marchmont House, Ms Strain, were represented by Mr Chris McDowall of Anderson Strathern LLP: the remainder were represented by one of the other Claimants, Mr Robert Dillon.  The Appellant was represented by Mr Tony Caplan, of Anderson Fyfe, and Care Concern by Mr Ian MacLean of Peninsula Business Services.  Although oral submissions were concluded at the hearing the Tribunal subsequently asked for full written submissions, which were provided in mid-March.  On 29 June the parties were informed by letter that the Tribunal had made a decision in favour of the Claimants on the issue of liability in their claim against the Appellant but that it required further written submissions on the issue of the liability of Care Concern.  Such further submissions were supplied in mid-July.  It was not until 14 September 2009 that a Judgment and written Reasons were sent to the parties.  It may be that there were good reasons for the procedure adopted by the Tribunal, although it is not explained in the Reasons; but a situation where over seven months elapsed between the end of the hearing and the production of the Judgment is regrettable.  

3.	The Judgment and Reasons confirmed the informal indication already given that the claim against the Appellant was upheld: we identify below the particular breaches found.  The Appellant was ordered to pay each of the Claimants thirteen weeks’ pay by way of compensation pursuant to reg. 15 (8) (a) of TUPE.  As regards Care Concern, however, the Judgment stated that “the application against the second respondent be dismissed”.  

4.	This is an appeal against that decision.  The representation before us was as in the Tribunal, save that Mr Roddy McIlvride of counsel appeared for the Appellant.  The issues raised by the appeal can be considered under three heads: (A) liability; (B) compensation; (C) the dismissal of the claim against Care Concern.  

(A)	LIABILITY

5.	It was the Claimants’ case that the Appellant was in breach of two primary obligations, under regs. 13 (2) and 13 (6) of TUPE, together with an ancillary obligation under reg. 14.  The relevant provisions read as follows:

“(2) Long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives of—
(a)	the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for it;
(b)	the legal, economic and social implications of the transfer for any affected employees;
(c)	the measures which he envisages he will, in connection with the transfer, take in relation to any affected employees or, if he envisages that no measures will be so taken, that fact; and
(d)	if the employer is the transferor, the measures, in connection with the transfer, which he envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact.
…
(6) An employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the relevant transfer, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures.”

By way of shorthand, and without prejudice to the Appellant’s submissions considered below, we will refer to the obligations under these two paragraphs as, respectively, “the duty to inform” and “the duty to consult”.  For convenience, we will set out here two other provisions of reg. 13 to which we shall have to refer in due course:

“(5) The information which is to be given to the appropriate representatives shall be given to each of them by being delivered to them, or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the trade union at the address of its head or main office.
…
(11) If, after the employer has invited any affected employees to elect representatives, they fail to do so within a reasonable time, he shall give to any affected employees the information set out in paragraph (2).”

6.	The obligation in each case relates to “affected employees”.  That term is defined in para. (1) of reg. 13, but we need not set out the definition since it was common ground that the Claimants fell within it.  

7.	The obligation in each case is not to inform/consult with the employees themselves but to do so with their “appropriate representatives”.  This phrase is defined in para. (3) as follows:

“For the purposes of this regulation the appropriate representatives of any affected employees are—
(a)	if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union; or
(b)	in any other case, whichever of the following employee representatives the employer chooses—
(i) 	employee representatives appointed or elected by the affected employees otherwise than for the purposes of this regulation, who (having regard to the purposes for, and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the transfer on their behalf; 
(ii) 	employee representatives elected by any affected employees, for the purposes of this regulation, in an election satisfying the requirements of regulation 14(1).”

Reg. 14, as referred to at sub-para. (b), sets out detailed provisions governing the election of representatives: all, however, that it is necessary to identify for the purpose of this appeal is that the obligation for the arrangement of the elections is placed on the employer.  The Appellant did not recognise any trade union, so the case did not fall within sub-para. (a).  Before the Tribunal it was argued that Ms Strain constituted a representative for the purpose of sub-para. (b) (i), but the Tribunal held otherwise, and that conclusion is not challenged on this appeal.  Thus, if the Appellant was under any duty under either para. (2) or (6) of reg. 13, she was obliged by reg. 14 to arrange for the election by the employees of appropriate representatives.  It is common ground that she did not do so.  

8.	It is right to say that although the Appellant gave no information to representatives of the employees within the meaning of reg. 13 she did give some information about the transfer to the employees themselves.  On the afternoon of 20 November 2007, after a short meeting with Ms Strain, she and a Mr Caplan, described by the Tribunal as her partner, called a meeting of all the staff then at work (with the exception of two or three left to look after the residents) in the dining room of Marchmont House: those present numbered 18 or 20 (out of a total workforce of 64).  There was no prior notice.  The Tribunal’s findings about the meeting are as follows: 

“14. [Mr Caplan] told the staff that the home had been sold.  An offer had been made that could not be refused.  He did most of the talking.  He asked if there were any questions.  [One of the Claimants] asked if everyone’s job was all right.  She was told that the jobs were safe.  [The Appellant] had confirmed this with CC.  Maxine Sweeney [another of the Claimants] was too shocked to ask questions and was not satisfied with the outcome of the meeting.  She felt shocked that after all these years she would not be working for the same employer.
15.	Marchmont kept an extremely high standard.  The food was best quality.  [Ms Strain] was concerned about patient care.  She felt that she knew nothing about the newcomers.  Someone asked if any staff would be moved.  They were told that there would not be any changes.
16.	At some point [Ms Strain] told [the Appellant] that she did not know anything about the new owners.  [The Appellant] told her that they had a care home in Ayr.”

It is clear that no detailed information was given.  The precise date of transfer was not then known.  Nothing was communicated in writing.  No attempt was made to communicate with the staff who were not at the meeting, but Ms Strain told the night shift and the news spread very quickly, as no doubt the Appellant intended it should.  There were no other direct communications with staff prior to the transfer.  Ms Strain had some further communications with the Appellant, but she felt that she was not given any further information of substance, particularly about Care Concern: as to this, see further para. 26 below. 

9.	It follows from para. 7 above that if the Appellant came under either of the two primary obligations under reg. 13 she was inevitably in breach of them since there were no appropriate representatives to whom she could have provided information or with whom she could have consulted.  It was, however, her case before the Tribunal that she was under neither obligation.  Mr Caplan’s submission on her behalf involved two steps:

(a)	On the evidence, she did not envisage taking any “measures” in relation to any affected employee in connection with the transfer: it was her expectation simply that the entire workforce would transfer to Care Concern without any alteration to the status quo.  Accordingly, no obligation to consult arose under para. (6).  

(b)	An obligation to inform under para. (2) only arose if there was an obligation to consult under para. (6).  

10.	At paras. 75-79 of the Reasons the Tribunal considered and rejected “limb (b)” of those submissions.  It held that the duties under paras. (2) and (6) were entirely separate.  The analysis is very short, and since the point is one of pure law we need not reproduce it here.  It followed that there was in any event a breach of reg. 13 (2), irrespective of whether there was also a breach of reg. 13 (6).  

11.	The Tribunal then went on at paras. 81-82 to reject “limb (a)”.  It identified three measures which it held that the Appellant envisaged taking in connection with the transfer, namely - “the wages details for 13 January 2008”; “the tax rebate”; and “the extra hours payment”.  In respect of each of those it cross-referred to earlier findings of fact (although two of the three cross-references are given the wrong paragraph numbers): we consider those in more detail below.  

12.	Mr McIlvride advances before us essentially the same arguments as Mr Caplan advanced to the Tribunal.  We take first limb (b), i.e. the argument that no duty to inform arises under para. (2) of reg. 13 unless the employer is also under an obligation to consult under para. (6).  

13.	On the face of it, the obligation to inform and the obligation to consult are patently distinct: they are contained in different paragraphs and impose different obligations.  However Mr McIlvride relied on the provision in para. (2) that the employer shall convey the relevant information long enough before the transfer “to enable the employer … to consult the appropriate representatives”.  He submitted that that demonstrated that the purpose of the duty to inform was, and was only, to enable consultation under para. (6) to take place, and accordingly that in a case where no such consultation was required no duty to inform arose.  

14.	The same submission was made to Millett J in Institution of Professional Civil Servants v Secretary of State for Defence [1987] IRLR 373 (“IPCS”), which was concerned with obligations in identical terms in the Dockyard Services Act 1986.  He rejected it.  He said, at para. 13 (p. 376) (we have substituted references to TUPE for his references to the provisions of the 1986 Act): 

“The second question which was canvassed before me was the extent of the obligation to consult which is placed upon the Secretary of State. That obligation is imposed by [paragraph (6)], and it arises only where the Secretary of State envisages that he will be taking measures in connection with the transfer. Thus the Act evidently requires the Secretary of State to inform the unions of four different matters, but to consult them on only one of them. I was for some time oppressed by the apparent illogicality of this. Why should the Secretary of State be required to consult the unions where he envisages that he will take measures, but not when he envisages that he will take none? The unions may well wish to be consulted as much in the second case as in the first. And why is the Secretary of State required to inform the unions in time to enable effective consultations to take place of matters on which he is not required to consult them? Logically, the consultations referred to in the opening words of [paragraph (2)] must include, but cannot be confined to, those referred to in [paragraph (6)].  On the other hand, Parliament can hardly have intended to compel the employer in the private sector to consult the unions on the desirability of the transfer itself or the sufficiency of the reasons for it. These are matters of business policy for the transferring employer to decide, and the unions cannot expect to participate in the decision. The reconciliation, in my view, is this. The consultations referred to in the opening words of [paragraph (2)] are voluntary consultations, which the unions may seek on any topic once they have the requisite information, but which the transferring employer is not compelled to grant if he chooses not to do so. The only consultations which he is obliged by law to enter into are those referred to in [paragraph (6)].”

That reasoning has recently been approved and applied by this Tribunal, HHJ Peter Clark presiding, in Cable Realisations Ltd. v GMB Northern [2010] IRLR 42, at paras. 29-35 (p. 45).  

15.	We are not bound by either decision, but on ordinary principles we should not depart from them unless we are satisfied that they are wrong.  That is far from being the case.  On the contrary, we find Millett J’s reasoning, as supplemented by Judge Clark’s, convincing.  We would make three further supporting points:

(1)	If Mr McIlvride’s submission were correct, it would mean that in a case where the employer did not envisage taking any such measures as would engage the obligation under para. (6) he would be under no obligation to give employees, via their representatives, even the basic information that the transfer is to take place or its date (see para. (2) (a)).  Since the effect of the transfer is, by virtue of TUPE, to change the identity of their employer, a matter of fundamental importance, it would be surprising if that was something of which they were not entitled to have any advance notice. 

(2)	We note that the effect of reg. 13 (10) is that if, notwithstanding the employer having complied with his obligation to arrange for the election of representatives, no representatives are in fact elected, he is in practice discharged from his obligations under paras. (2) and (6).  However, in that case para. (11) requires him to give the information required by para. (2) to the affected employees individually.  That is hard to reconcile with a submission that the only purpose of the duty to inform is to enable consultation to take place.

(3)	TUPE represents the United Kingdom’s implementation of EU Council Directive 2001/23/EC.  Article 7.1 of the Directive reads as follows:

“The transferor and transferee shall be required to inform the representatives of their respective employees affected by the transfer of the following:
•	The date or proposed date of the transfer,
•	the reasons for the transfer,
•	the legal, economic and social implications of the transfer for the employees,
•	any measures envisaged in relation to the employees.
The transferor must give such information to the representatives of his employees in good time, before the transfer is carried out. 
The transferee must give such information to the representatives of his employees in good time, and in any event before his employees are directed affected by the transfer as regards their conditions of work and employment.”

That is the obligation which underlies reg. 13 (2).  It contains no provision equivalent to the words relied on by Mr McIlvride.  

16.	For those reasons we reject the first limb of Mr McIlvride’s submission.  It follows that the Appellant was on any view in breach of the duty to inform prescribed by reg. 13 (2).  We should nevertheless consider the second limb, since any failure to consult would represent a separate breach and could, at least in principle, be material to the question of remedy.  

17.	The paragraphs cross-referred to at para. 82 of the Reasons read as follows:

“49. A postscript on the payslips asked it to be noted that the wages department would pay wages from 1-3 January into bank accounts as soon as possible.  It also said that it was understood that the new owners would pay wages from 4 January until the end of the month on 5 February.
50.	Some staff received a tax rebate.  Alisa McMillan asked why and was told that CC would reclaim it on 5 February so it was not to be spent.  None of the staff had been told of this.  This caused worry among the staff affected.  Mary McIntyre had to pay it back and so did not want to spend it.  
51.	Payment was also made for an extra couple of hours which was understood to be subject to being reclaimed 5 February.  This was holiday and was for holiday entitlement for the three day period from 1 January.”

18.	The question is whether the Tribunal was entitled to find that the state of affairs described in each of those paragraphs involved the taking of “measures” by the Appellant.  “Measures” is, as Millett J observed in IPCS, “a word of the widest import [which] includes any action, step or arrangement” (see para. 12, at p. 376).  But it must nevertheless be something deliberately done by the transferor over and above what necessarily occurs as a consequence of the transfer itself.  

19.	The Tribunal’s account in the paragraphs quoted is so summary that it is not easy to be sure exactly what it is that the Appellant is said to have done in each instance which amounted to a step taken by her, as opposed to something done by HMRC or the transferee.  However, with the assistance of the parties, we think that the position can be elucidated as follows:

(1)	Para. 49 is reasonably self-explanatory – although it should be said that the “postscript” appeared not on the payslips but in a letter from the Appellant to the employees thanking them for their past service.  Insofar as the postscript stated that the employees would, following the transfer, be paid by Care Concern, that was no more than a statement of an inevitable consequence of the transfer and cannot constitute any “measure” taken by the Appellant.  But the reference to their pay for the first three days of the month does seem to represent a departure from what would otherwise have occurred – that is, the employees would normally have received payment at the beginning of February – and although (assuming “as soon as possible” meant an earlier payment) the change would in principle be a welcome one, it seems to us nevertheless to constitute a “measure”.  

(2)	As regards para. 60, it was explained to us that the Tribunal’s terminology may be inaccurate.  In broad terms, the problem seems to have been that, as tax was normally computed at the point of each regular monthly payment, the part-payment to be made by the Appellant would attract no, or possibly an inadequate, deduction and might therefore involve an overpayment (albeit of a small amount), which would require adjustment at the end of the month.  It is not clear whether this occurred by arrangement between the Appellant and Care Concern or was the inevitable consequence of the application of the relevant tax rules.

(3)	As to para. 51, quite how this works remains obscure, but what matters for present purposes is that a payment which would not normally have been made was made by the Appellant in the course of January, although subject to being reclaimed by Care Concern at the end of the month.  This was not the inevitable consequence of the transfer but reflected the arrangements made between the Appellant and Care Concern for the apportionment of liability for untaken holiday.  
20.	Administrative arrangements of this kind are usually necessary in the context of a transfer, and it is not at all clear that there was any, or any but the most trivial, disadvantage to employees.  Nevertheless, at any rate in two of the cases, there were arrangements made by the Appellant (no doubt with Care Concern, but it is the Appellant’s involvement which is relevant) which affected the employees; and the Regulations do not prescribe that any effect must be disadvantageous in order to trigger the requirement to consult.  We have considered whether the effect in question was so trivial as to be de minimis, but we do not think that such a conclusion could be justified in view of the Tribunal’s express finding, at least in relation to the “tax rebate”, that the changes in their payment arrangements caused worry among the staff concerned.  It is not difficult to imagine how any change to the payment arrangements with which employees are familiar, and all the more so in the context of a change of employer, is liable to be unsettling; and part of the purpose of the duty to consult must surely be to enable transitional arrangements of the kind adopted here to be explained to employees and for them to be reassured, if this be the case, that they will not in any way be prejudiced by them.  The sums involved were no doubt small, but it must be borne in mind that many of the employees in question were low-paid.

21.	Accordingly we can see no error of law in the Tribunal’s conclusion that the Appellant must have envisaged taking measures which would affect the employees and that the duty to consult under reg. 13 (6) was engaged.  

(B)	COMPENSATION

22.	Reg. 15 (1) provides that:

“Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to a employment tribunal on that ground – 
(a)	in the case of a failure relating to the election of employee representatives, by any of his employees who are affected employees;
(b)	in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related;
(c)	in the case of a failure relating to representatives of a trade union, by the trade union; and
(d)	in any other case, by any of his employees who are affected employees.”

It is a nice point whether, having regard to the way reg. 15 (1) is drafted, the Claimants’ claim in the present case falls under head (a) alone or under that head and head (d).  It may be that the only formal failure was to arrange for the election of employee representatives, but the real sting in that failure is that it meant that there could be no compliance with the substantive information and consultation obligations in reg. 13.  

23.	Reg. 15 (8) provides (so far as material) as follows:

“Where the tribunal finds a complaint against a transferor under paragraph (1) well-founded it shall make a declaration to that effect and may - 
(a)	order the transferor, subject to paragraph (9), to pay appropriate compensation to such descriptions of affected employees as may be specified in the award; or
(b)	… .”

(Para. (9) provides for the transferee to be jointly and severally liable: see below.)  The term “appropriate compensation” is defined in reg. 16 (3) as follows:

“Appropriate compensation” in reg. 15 means such sum not exceeding thirteen weeks pay for the employee in question as the tribunal considers just and equitable having regard to the seriousness of the failure of the employer to comply with his duty.”

24.	In Susie Radin Ltd v GMB [2004] ICR 893 the Court of Appeal considered the effect of s. 189 (4) (b) of the Trade Union and Labour Relations (Consolidation) Act 1992, which provides for the length of the “protected period” in respect of which an employer may be required to pay remuneration where it has been in breach of the consultation obligations which apply under s. 188 in cases of collective redundancy.  Although the mechanism of a protected award is formally different from an award of “compensation” for breach of the information and consultation obligations under TUPE, the underlying purpose and substantive effect of the provisions are effectively the same, and the language of s. 189 (4) (b) also provides for the touchstone to be what the Tribunal determines to be “just and equitable in all circumstances having regard to the seriousness of the employers’ default”.  Accordingly the guidance given by the Court of Appeal in Susie Radin is equally applicable to an award of compensation under reg. 15 (8) – as already recognised by this Tribunal (Lady Smith presiding) in Sweetin v Coral Racing [2006] IRLR 252 (see at para. 30 (p. 256)) (and see also Cable Realisations (above), at para. 42 (p. 46)).  At para. 45 of his judgment in Susie Radin (p. 907) Peter Gibson LJ said this:

“I suggest that ETs, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind:
(1) 	The purpose of the award is to provide a sanction for breach by the employer of the obligations in s.188: it is not to compensate the employees for loss which they have suffered in consequence of the breach.
(2) 	The ET have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default.
(3) 	The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult.
(4) 	The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s.188.
(5) 	How the ET assesses the length of the protected period is a matter for the ET, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate.”

25.	The Tribunal dealt with the issue of remedy at paras. 106-112 of the Judgment. After referring to the relevant provisions (although not to any authority), it said:

“107. “Appropriate Compensation” was defined by Regulation 16(3) as “such sum not exceeding thirteen weeks’ pay for the employee in question as the Tribunal considers just and equitable having regard to the seriousness of the failure of the employer to comply with his duty”.
108.	 In this case the Tribunal were of the view that the failure was a serious one.
109.	 The claimants were left in a state of uncertainty about the future.  [Ms Strain] had to make her own enquiries about the second respondent.  There was no attempt to reassure or keep the claimants informed as time went on.  They continually asked [Ms Strain]] for information who was unable to provide it.  They were unsure of the tax rebate and holiday pay position and needless worry was caused.
110.	 Moreover there had been no attempt to obtemper the provisions of Regulations 13 and 14.
111.	 In making an award of compensation the Tribunal have to reflect the nature and extent of the first respondent’s default.
112.	 Given the complete failure to observe the duties imposed by Regulations 13 and 14 coupled with the level of worry and concern that caused, the Tribunal considered it to be just and equitable to decide that the multiplier should be the full thirteen weeks.”

26.	Paras. 109 and 112 reflect earlier more detailed findings by the Tribunal.  Specifically, it made findings that following the meeting on 20 November a number of members of staff wanted to learn more about the transfer, and in particular about Care Concern, who were to become their new employers, and had approached Ms Strain; but that Ms Strain had been told no more than they had and was unable to find out more.  The Tribunal found that Ms Strain paid a visit, on her own initiative, to a care home in Ayr run by Care Concern in order to try and find out more about them.  Although a representative from Care Concern visited Marchmont House on 4 December the Tribunal found that the staff remained upset about how little they had been told.  

27.	The Appellant’s case in this regard is succinctly expressed in para. 7 (iii) of the Notice of Appeal as follows:

“[I]n the event the tribunal were well founded in sustaining the complaints against the appellant the tribunal erred in awarding to each of the claimants the equivalent of thirteen weeks pay (the maximum sum which could be awarded in terms of regulation 16(3) of the Regulations).  The findings in fact do not disclose that any of the claimants was in fact unaware prior to the transfer of the impending transfer, or was unaware of the fact that the transfer would have no detrimental consequences for them, even if the information to that effect provided by the appellant had not been conveyed through an employee representative within the meaning of the Regulations.  On the premise the advance payment of wages amounted to a “measure” the claimants suffered no material prejudice as a consequence of not being consulted on that payment in advance.  In those circumstances the appellants’ breach of the Regulations was a relatively minor, and technical, one.  The awards made by the tribunal are plainly excessive.”

28.	In our view that submission is well-founded.  If, as Peter Gibson LJ said in Susie Radin, the focus is on the seriousness of the employer’s default, the Appellant’s default in the present case cannot be said to be at the extreme end of the scale, so as to justify a maximum award.  Although the Tribunal is no doubt correct that there was a complete failure to observe regulations 13 and 14 according to their terms, this was not a case where no information had been given to the workforce at all.  On the contrary, the Appellant (and Mr Caplan) had addressed a meeting of staff on 20 November, several weeks before the transfer, and had given them at least some basic information and – importantly – a reassurance that Care Concern would be making no changes in staffing or terms and conditions following the transfer: she clearly, and realistically, understood and intended that that information would come to the attention of those not attending the meeting.  The position therefore cannot be compared with that in a case like Sweetin, where the first that the employees knew about the transfer was when the representative of the new owners announced himself at the premises on the day that it took place: in that case, unsurprisingly, a maximum award was held to be appropriate.  Further, it seems to us material that, although we have upheld the finding of the Tribunal that the Appellant should have consulted with representatives of the employees about the transitional payment arrangements, the measures in question were not of any great significance, and the broad picture is that Care Concern was not expected to (and, we are told, did not in fact) introduce any substantial changes in working conditions at Marchmont House.  The finding of the Tribunal that the Claimants should receive thirteen weeks’ pay cannot stand.  

29.	Mr McDowall reminded us of Peter Gibson LJ’s “point 5” in Susie Radin, where reference is made to taking the maximum award as the starting point and discounting, if appropriate, for mitigating circumstances; and as we understand it he made the same submission to the Tribunal.  But that guidance is directed at the case where the employer has done nothing at all, and it should not be applied mechanically in a case where there has been some information given and/or some consultation but without using the statutory procedure.

30.	The parties were agreed that if we overturned the decision of the Tribunal on this point it was unnecessary for the question of compensation to be remitted and that we should exercise our powers under s. 35 of the Employment Tribunals Act 1996 and substitute the level of award that we believed to be just and equitable.  The Appellant submitted that an award of three weeks pay would sufficiently reflect the seriousness of the default.  We cannot agree.  If this had been a case where she had done, in substance, everything that a reasonable employer should have done by way of information and consultation (subject to the failure in relation to the transitional payment arrangements) but had been in formal breach of reg. 13 because she had not worked through employee representatives, it might be another matter.  But that is not the case.  The steps which the Appellant took to inform her employees about the transfer were inadequate quite apart from any formal failure.  It was not good enough for her to make her announcement at a meeting which less than a third of the workforce could attend and to leave the rest to learn the information at second hand.  If she had followed the procedures in the Regulations she would have had to give the information to the appropriate representatives in writing (there is no express provision to that effect, but it necessarily follows from the terms of reg. 13 (5)); and there is no good reason why she could not have written to the entire workforce.  We accept that face-to-face meetings have their advantages; but if she was going to rely solely on such meetings the Appellant should have held a meeting for each shift.  The result of the procedure which she adopted was, on the Tribunal’s findings, that the workforce felt under-informed and in the dark.  We also take into account the fact that the Tribunal found that she failed to give prompt and full answers to the questions raised by Ms Strain, who was the natural conduit by which further information could be given to the workforce.  We accept that some of the questions which clearly concerned the Claimants, in particular about the character and experience of Care Concern or its owners, were not matters about which consultation was formally required under reg. 15 (6).  But they could properly have been the subject of “informal consultation” of the sort which Millett J held in IPCS to be contemplated as following the supply of information under reg. 13 (2).  It is plain from the Tribunal’s findings that these failures caused real distress and upset to the workforce.
 
31.	Taking all these matters into account, it seems to us that it is just and equitable to make an award of seven weeks’ pay.

(C)	JOINT LIABILITY

32.	Reg. 15 (9) provides (so far as material) as follows:

“The transferee shall be jointly and severely liable with the transferor in respect of compensation payable under sub-paragraph (8) (a) … .”

33.	The terms of reg. 15 (9) are unequivocal.  We can see no reason, and none of the advocates before us could suggest any, why they should not apply in the present case.  No-one had contended otherwise in their submissions to the Tribunal.  As noted above, the Tribunal had in fact sought further submissions on the application of reg. 15 (9); and Mr MacLean had in his response expressly acknowledged (although he deplored) that if an award was made against the Appellant it would also have to be made against Care Concern.  

34.	The Tribunal dealt with the issue of Care Concern’s liability at paras. 96-105 of the Reasons.  But the whole of that passage, except the final paragraph, is concerned with a submission which had apparently been made that Care Concern was responsible for a problem which arose in the immediate aftermath of the transfer because credit arrangements had not been made with a number of suppliers and Ms Strain had to pay for essential supplies out of her own pocket until the problem could be resolved.  The Tribunal held that it had not been established on the evidence that that problem was the fault of Care Concern.  On that basis, it concluded, at para. 104 that it did not find that “the complaint against [Care Concern was] well founded”.  It then simply said, at para. 105:

“Having said that, we were aware of the provision of Reg. 15 (9) in relation to joint and several liability.”  

35.	That reasoning is, with respect to the Tribunal, difficult to follow.  The question of Care Concern’s responsibility for the problem with the suppliers is irrelevant to the application of reg. 15 (9).  The Tribunal acknowledges the effect of reg. 15 (9) but fails to give effect to its terms by making a finding that Care Concern is liable.  One possible explanation is that it was confused by a submission made by Mr McDowall to the effect that it was the task of the Tribunal to apportion liability as between the Appellant and Care Concern; it may be that it believed, wrongly, that reg. 15 (9) would take effect without an order and that all that it was being asked to determine was the supposed apportionment issue.  Mr McDowall acknowledged before us that his submission had been misconceived and that the issue of apportionment (if not addressed in the sale agreement) fell to be determined, if necessary, in the ordinary courts.  Be that as it may, the omission to find Care Concern liable cannot be upheld.  

CONCLUSION 

36.	We dismiss the appeal against the finding that the Appellant was in breach of the duties imposed by regs. 13 and 14.  We allow the appeal against the order that she pay the Claimants thirteen weeks’ pay and substitute an order that she pay seven weeks’ pay.  We allow the appeal against the dismissal of the claim against Care Concern and declare that it is jointly and severally liable for the sums ordered to be paid by the Appellant.