Camilla Whitehouse succeeds in complex TUPE, discrimination and unfair dismissal claims
In a procedurally and substantively complex case, Camilla Whitehouse successfully advised and represented a claimant who had been subjected to sex discrimination, sexual harassment, victimisation and dismissal.
The claimant worked at the bar of a private members club. During her employment, the club concluded a franchise agreement with the second respondent, who made frequent unwanted sexual advances and subjected her to verbal and sexual abuse. It subsequently emerged that the second respondent had been operating the bar illegally in breach of licensing law. Without the claimant’s knowledge, the club invited the second respondent and the claimant to become employees so that the bar could continue to trade whilst an alcohol licence was obtained. Thereafter, the second respondent created a limited company, (“the first respondent”) and the franchise agreement with the club was assigned from the second to the first respondent. The claimant’s repeated requests for written particulars of her employment and payslips were consistently ignored by all parties, making it difficult for her to ascertain the legal identity of her employer. In due course, the club decided to terminate the franchise agreement with the first respondent. Two days after the meeting, the second respondent informed the claimant that she was dismissed but would be employed again with reduced hours and reduced pay. In due course, the franchise agreement was terminated. The claimant issued proceedings against the first and second respondents for unfair dismissal and sex discrimination. The first respondent then went into liquidation and then second respondent defended the position, inter alia, claiming to be insolvent.
Advice and representation
Given the potential issues of recovery, Camilla was instructed to advise the claimant as to the complex application of The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). TUPE regulates contracts of employment where an economic entity is transferred, ensuring the transferor’s rights and responsibilities in relation to employees are retained by the transferee. Acts of the transferor prior to the transfer being considered to have been done by the transferee (regulation 4(2), TUPE).
Following a contested preliminary hearing before an employment tribunal, Camilla successfully defended an application by the second respondent to strike out the claim and added a further fourteen respondents to the claim, namely members of the club’s management committee. The third to seventeenth respondents in turn instructed a leading city firm and filed a fully pleaded response denying vicarious liability for the second respondent’s discriminatory actions and unfair dismissal.
Camilla continued to advise and represent the claimant, resulting in the third to seventeen respondents paying the claimant a large settlement sum to compromise her claims against them.
Thereafter, Camilla represented the claimant at a final hearing against the first and second respondents, the latter of whom Camilla carefully cross-examined as to his sexual harassment, sex discrimination and victimisation. After detailed oral and written submissions, Camilla succeeded at trial and the claimant was awarded a further £8,178.40 in damages, which supplemented the substantial settlement agreement with the third to seventeenth respondents.