BlueSky employees win legal ruling in Thomas Cook case

Former employees of Bluesky Travel Systems have won an employment tribunal opening the way for them to make claims for unfair dismissal by Thomas Cook.

The Manchester-based technology firm, which was developing the iTour system for Thomas Cook, was placed into administration in September 2009 after relations with Cook fell apart following the merger with MyTravel.

The tribunal heard how the assets of BlueSky were bought for £550,000 by JMCH Services, a subsidiary of Thomas Cook, to enable Cook to get hold of the source code of iTour, which was being developed under the auspices of Cook’s Globe project.

Following this 25 former BlueSky employees were re-employed by JMCH on the instruction of Mark Foy, Thomas Cook’s Globe programme director.

The court documents show Cook had estimated the cost of buying the iTour code at up to £2 million, but was given priority in the firm’s administration after it bought debenture loans from four investors of BlueSky.

BlueSky had spent £25 million developing iTour and had to significantly ramp up its operations after the Cook merger with MyTravel, growing from 35 to 125 staff and opening an office in Germany.

Mark Fallon and 44 other former BlueSky employees took their case to an industrial tribunal in December 2009, claiming they should have been subject to Transfer of Undertakings (protection of Employment) rules.

The Manchester industrial tribunal, held in front of employment judge John Sherratt in May, found that there was a “relevant transfer of provision” under TUPE regulations when the Globe project was transferred to JMCH.

The judgement stated: “We conclude that the activities carried on by the alleged transferee JMCH were fundamentally and essentially the same as those carried out by the alleged transferor.

“The services were in connection with the maintenance and development of the iTour/Globe project. These services were carried out both before and after the transfer.

“They were carried out by the same people, albeit not all of the same people, but it is not the task of this tribunal to determine who transferred.”

Fallon told Travolution that the way was now clear for him and the 44 other claimants to pursue Cook for unpaid salaries unfair dismissal and redundancy.

“We have established the first major legal principal in this case that TUPE applied and that’s something Thomas Cook denied from day one,” he said.

“The judge has recognised that TUPE does apply and the other significant judgement was that he recognised that the principal business of BlueSky was delivery of this application for Thomas Cook.”

Legal representatives from both sides in the case are now due to meet on July 28 with the judge to discuss the next steps in the case.

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