Failure to consult

Case 2: The facts

When her employment transferred under TUPE, Ms Sweetin expected to be given the job of deputy manager but instead remained a clerk. She brought claims of constructive dismissal, on the grounds that her employer had failed to deal expeditiously with her grievance, and of failure to consult under TUPE.

The ruling

The Employment Appeal Tribunal held that, because Sweetin had not effectively communicated her grievance, there had been no constructive dismissal. But it upheld her claim for failure to consult.

It said that compensation for this failure should be calculated in the same way as for failure to consult over collective redundancies – that is, based on the nature and extent of the employer’s default rather than on the length of time it should have taken to consult.

In this case, the tribunal had found the employer’s failure to be “serious” and “gross”, so should have awarded the maximum compensation of 13 weeks’ pay.

Sweetin v Coral Racing EATS/0039/05