The 2006 Transfer of Undertakings (Protection of Employment) Regulations (TUPE) apply when there is a transfer of “an economic entity which retains its identity” from one employer to another. In Ejiofor (t/a Mitchell & Co Solicitors) v Sullivan and ors, the Employment Appeal Tribunal (EAT) held that there can still be a transfer even if some of the entity’s activities were unlawful from time to time.
Basic facts
Ms Sullivan worked as a legal secretary for Aaronson & Co, a firm of solicitors in west London. After Mr Aaronson was struck off the roll of solicitors in August 2010, the staff continued working on existing client files under the oversight of another firm of solicitors. Mr Aaronson also continued to give instructions, despite having been struck off.
On 1 April 2011, Mr Ejiofor (the sole principal of Mitchell & Co) set up a solicitor’s practice in the same premises and employed Ms Sullivan and the other member of staff from that date. Mr Ejiofor also entered into a consultancy arrangement with Mrs Aaronson, a registered foreign lawyer. On 10 June 2011, Ms Sullivan was told by Mr Ejiofor that he intended to cut her salary by almost half. She was given the weekend to think about it but was told that if she did not agree, she would be sacked.
She was subsequently dismissed and presented claims for unfair and wrongful dismissal arguing that, as the result of a TUPE transfer, her employer was Mitchell & Co.
Tribunal decision
The tribunal found that Ms Sullivan continued to be employed by Aaronson & Co throughout the period until 31 March 2011. Firstly, the firm continued to operate in the sense that it serviced client files and paid its bills. Secondly, it ensured there were oversight arrangements in place as required by the Law Society. Although these arrangements had failed from time to time, that did not change the fact that Aaronson & Co continued to be Ms Sullivan’s employer until the end of March.
It also found that as of 1 April 2011 there was a TUPE transfer of an economic entity which continued to operate exactly as before. The staff remained the same as did the client files, the operating systems and functions. Ms Sullivan’s employment had therefore transferred under TUPE to Mitchell & Co on that date. The tribunal then set a date for a remedies hearing to sort out compensation.
Mr Ejiofor tried to get that hearing adjourned by sending in an illegible sick note to the tribunal. The tribunal judge did not think the note was genuine and refused the request. Mr Ejiofor appealed against that decision on the ground that it was unfair. He also appealed against the decision that there had been a TUPE transfer on the ground that the firm had continued to provide legal services despite the fact that Mr Aaronson had been struck off.
EAT decision
The EAT dismissed the appeal on both counts. First of all, it held that although some of the firm’s activities might have been unlawful from time to time, the business, as such, had not been carried on for an unlawful purpose. For that reason alone, the argument put forward by Mr Ejiofor was “hopeless”.
As for the adjournment issue, the EAT found that this was one of those rare cases where fairness did not require the tribunal to adjourn as there was no need for Mr Ejiofor to be there in person. His associate, who was representing him, was present when the tribunal judge aired his suspicions about the sick note but he did not make any application for further time to deal with the points relied on. In those circumstances, the judge was entitled to make his finding of fact about Mr Ejiofor’s true motivation.