This appeal concerned the transfer of a Toyota dealership and franchise. The employer attempted to comply with the requirements for consultation and information, as per regs. 13 & 14 of TUPE 2006. It arranged employee elections, so as to elect two appropriate representatives. The aforementioned elections were held over the course of one afternoon, during a three-hour period. Mr Langdon was absent and therefore unable to exercise his right to vote; however, the employer did not propose an alternative date. The votes demonstrated one clear winner, with two other employees tied for second place. The employer, itself, made an arbitrary decision as to which of the latter won second place. Mr Brolly’s name was put forward despite a lack of confirmation of his actual wishes. Mr Brolly subsequently ranked in fourth place.

The Employment Tribunal held the process had been unfair and awarded Messrs Langdon and Brolly two and seven weeks’ pay respectively. However, the EAT held that the Employment Tribunal had adopted the wrong approach to these awards; treating them as compensatory, rather than punitive. The EAT was of the view that the employer’s breaches of TUPE 2006 – in particular, its failure under reg. 14 – were technical and ‘could not be characterized as severe’.

The EAT concluded therefore that whilst Mr Langdon’s award was not excessive, Mr Brolly’s award was in the circumstances. Mr Brolly’s award was subsequently reduced from seven weeks’ pay to three weeks’ pay. http://www.bailii.org/uk/cases/UKEAT/2013/0059_12_2103.html