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Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. When was the claim issued?
Thank you. There is actually some case law on this, specifically Mist v Derby Community Health Services NHS Trust. There, the EAT held that it is not necessary for a claimant to go through the early conciliation process again before applying to amend an existing claim to include or substitute with a new respondent. The facts were somewhat similar in that the claimant had started the conciliation process against the original employer in a TUPE transfer but later tried to add the new employer. They allowed that even though no conciliation process had been undertaken against the new respondent or that the time limit to claim had recently passed.
So it is possible for the claimant to do this and the tribunal retains the legal discretion on deciding whether to allow it.
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The facts were the same in the case I mentioned - the claimant issued an early conciliation claim against the old employer and never mentioned the new one. Later on she EC process finished and she issued tribunal claims against the old employer, again not mentioning the new one. Only after some time did she apply to include the new employer in the claim and was allowed to do this. So whether it is an addition or a replacement, it can still be covered by the binding case law. The fact she never transferred to the new employer does not mean she cannot claim against them - if there was a valid TUPE transfer and the resignation was as a result of this transfer then a claim can be made against what should have been their employer following TUPE
The claim may be able to proceed with you as a respondent in it but that does not mean they will be successful and you will have any liability. So you can proceed with defending it and see what the tribunal decides
Usually there is no TUPE in insolvency situations unless you took on the old one as a going concern (i.e. you rescued it to allow it continue trading).
This was the tribunal decision you refer to - it went to the Employment Appeals Tribunal and was overturned - my response was based on the subsequent appeal decision, not the tribunal's decision.
And you continued the business they were operating, i.e. you did not completely change the purpose of the business?
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Ok so that will likely mean a TUPE transfer was in place so the person can indeed consider claiming against the new employer.