Mears Homecare Ltd v Bradburn and others UKEAT/0170/18/JOJ
Appeal against the ET’s decision allowing the Claimants’ claims for declarations and awards, in respect of the Respondent’s failure to respond to production notices under s 10 National Minimum Wage Act 1998 (“NMWA”), following a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Appeal allowed.
The Claimants were employed by the Respondent until their employment was transferred to a transferee. They served production notices under s 10 NMWA by which they requested wage information from the Respondent for the preceding 12 months, covering nine months during which they were employed by the Respondent and three months during which they were employed by the transferee. When the Respondent failed to respond, the Claimants complained to the ET, which upheld their complaints and ordered the Respondent to make an award to each Claimant. The Respondent appealed on the grounds that (1) the ET had erred in treating the employment as having ceased for the purposes of s 54(1) and (4) NMWA – where there has been a relevant transfer, the effect of reg 4(1) TUPE is that the employment does not cease, and (2) the ET had erred in failing to consider whether the obligation to keep and preserve minimum wage records was itself an obligation that transferred where there was a relevant transfer.
The EAT held that (1) the ET had erred in concluding that the Respondent was the employer of the Claimants within the meaning of s 54(4) NMWA, because employment by the Respondent had ceased, and it had incorrectly focused on the identity of the employer rather than the key question of whether the employment under a contract of employment had ceased, and (2) the obligation to maintain records under the NMWA had transferred to the transferee.
Published: 15/07/2019 16:42