The claimant in the employment tribunal worked for the respondent as a cleaner, having transferred into its employment pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The respondent consulted with the claimant about proposed changes to her terms and conditions but no agreement was reached. The respondent then dismissed the claimant on notice and re-engaged her on new terms.

The claimant claimed unfair dismissal, acting as litigant in person. At the full merits hearing the tribunal, adopting the list of issues in the minute of an earlier case management hearing, considered and decided the claim as one of ordinary unfair dismissal and dismissed the claim.

The claimant appealed, contending that the tribunal should have identified that her claim form, in substance, also raised a complaint of automatically unfair dismissal contrary to regulation 7 of TUPE, which had not been abandoned.

The appeal succeeded. This was having regard to the fact in particular that the claimant had stated in her claim form that the transferor had written to her prior to the transfer indicating that the respondent may carry out an organisational review leading to changes in terms or redundancies, she later sent an email to the tribunal stating that she had received such a letter, and also referred to it in the agenda form for the case management hearing.

This put the tribunal on notice that the claimant at least may be seeking to bring what amounted to a regulation 7 claim. Bearing in mind that she was a litigant in person, it was incumbent on the tribunal proactively to raise and seek clarification of that at the case management hearing. As it was not apparent that it had done so, and given that the claimant’s email which began with a reference to that letter was also before the tribunal at the full merits hearing, it was incumbent on the tribunal at the full merits hearing proactively to raise the issue for clarification. Recording that the parties had confirmed the issues as stated in the minute of the case management hearing was not, in this case, sufficient.

[Summary reproduced from the EAT judgment]