In Country Weddings v Crossman UKEAT/0535/12, the EAT held that the Employment Tribunal does not have the power to apportion liability between the outgoing and incoming employer for failure to inform and consult under TUPE. Instead, the parties must apply to the County Court or the High Court for a ruling on this point.
Ms Crossman brought a claim against both her former and new employer for failure to inform and consult under TUPE. Her claim was successful and she was granted an award. The Tribunal held that this award should be paid by the new employer. The EAT held that the Tribunal had got this wrong as TUPE specifically provides that liability for such an award is joint and several between the outgoing and incoming employer. This means that both are equally liable for the award and the claimant can pursue either for payment. The paying employer can then pursue the other for a contribution to its share of the liability, but the apportionment of liability is a matter for the County Court or High Court rather than the Tribunal.
This is a wake up call for employers involved in a TUPE transfer. In particular, a transferee (i.e. the new employer) is well advised to obtain appropriate warranty and indemnity protection from the transferor, given that the majority of the informing and consultation obligations under TUPE lie with the transferor but employees are generally more likely to pursue their new employer for any compensation.