TUPE; constructive dismissal; resignation due to a pay cut post-transfer is automatically unfair (ETO defence failed).
TUPE; constructive dismissal; a resignation due to a pay cut imposed by the transferee is automatically unfair.
TUPE; the Directive aims to safeguard employee rights in the event of a change of employer.
TUPE; a temporary closure of the business does not prevent a transfer of an undertaking.
TUPE; transfer; established the decisive criteria for a transfer: does the economic entity retain its identity?
TUPE; identification; only employees assigned to the part of the undertaking transferred will transfer.
TUPE; variations to contract are void if the sole or principal reason is the transfer.
TUPE; liability; the transferee inherits liability for pre-transfer unfair dismissals.
TUPE; dismissal; employees dismissed immediately before transfer are deemed to be employed at transfer.
TUPE; liability; the transferee is liable for obligations arising before the transfer.
TUPE; contracting out; variation of terms; transfer as the reason. Philips contracted out the running of its staff canteen to ISS under a fixed-term agreement for a fixed fee, ISS undertaking to employ the canteen staff. The European Court held this was a transfer of an undertaking: that the services were provided exclusively for the transferor's benefit, for a fee fixed by the agreement and with a degree of control retained by the customer, did not prevent the Directive applying. On the workers' complaints that ISS had changed the pay date and the make-up of their pay, the court applied Daddy's Dance Hall: the transferee may alter terms and conditions in the same way the transferor could, but the transfer itself may never constitute the reason for the amendment [Harvey 130.02].
TUPE; business transfer; activity vs economic entity. An economic entity cannot be reduced to the activity entrusted to it: losing a service contract to a competitor does not of itself amount to a transfer of an undertaking. In labour-intensive sectors there is no transfer under the Acquired Rights Directive unless significant tangible or intangible assets pass, or the new contractor takes over a major part of the workforce in terms of numbers and skills. The decision prompted the UK's separate service provision change regime in TUPE 2006.
Redundancy; pool; identifying a pool of one was reasonable.
TUPE; relevant transfer; economic entity; multi-factorial test. The EAT distilled the ECJ and domestic case law into guidance on what amounts to a relevant transfer, dividing the considerations between those going to whether there is an identifiable economic entity and those going to whether that entity has transferred, and advising tribunals to take the two questions separately and in that order, a tribunal which does not so running 'a real risk of error'. The guidelines are a summary of a multi-factorial assessment, not a checklist. The factors they gather, the type of undertaking, transfer of tangible and intangible assets, whether the majority of staff are taken over, transfer of customers, similarity of activities and any interruption in them, cannot be considered in isolation: no single factor is decisive and not all need be satisfied. The approach was approved in Hunter v McCarrick.
TUPE; service provision; a transfer can occur even if no assets transfer, if the activity is labour-intensive.
TUPE; Vicarious liability; the Court of Appeal accepted that not only primary tortious liability but also secondary vicarious liability would transfer to the transferee in respect of an employee whose employment has been transferred under TUPE Reg 4. A foundational case for understanding vicarious liability transfer.
TUPE; Vicarious liability; joined appeal with Martin v Lancashire. Established that liability under the Occupiers' Liability Act 1957 arising from the transferor's employment relationship would transfer where there was sufficient connection with the contract of employment.
TUPE; continuity; a break in employment between the transferor and transferee breaks continuity for TUPE purposes.
TUPE; in asset-reliant sectors (e.g. catering), the transfer of assets is a key factor in identifying a transfer.
TUPE; ETO reason; dismissal to make the business more attractive for sale is not an ETO reason.
TUPE; transfer of a transferor's vicarious liability in tort to a third party; "under or in connection with" the contract of employment; reg.5(2)(a) of TUPE 1981 (now reg.4(2)(a) of TUPE 2006). Mr Doane, then playing for Sheffield United, was injured in an allegedly negligent tackle by Darren Holloway, then a Wimbledon FC player, whose employment later transferred under TUPE to Milton Keynes Dons.
TUPE; pre-transfer dismissal; ETO reason. A transferor cannot rely on the transferee's reduced need for employees to establish an economic, technical or organisational reason for a pre-transfer dismissal: it may take account only of its own requirements for employees at the time of dismissal. The dismissal of a corporate solicitor made redundant on dissolution of the firm because the successor firm did not need corporate lawyers was by reason of the transfer and automatically unfair.
TUPE; pre-transfer dismissals by an administrator; reg 8 TUPE 1981; whose reason counts. Employees dismissed by administrators two days before the business was sold to a company connected with the former managing director were not dismissed for a transfer-related reason. The reason for dismissal is that of the person who took the decision, here the administrator, whose independence and genuine economic reason were unchallenged [59], [80]-[82]. A director's stratagem to engineer an administration and a sale to his associates cannot be attributed to an independent administrator so as to displace his reason, even if he guessed at it [84]; the contrary argument would make the reason depend on whether the stratagem later worked [85]. The tribunal's decision that the employees were not employed immediately before the transfer was restored and the EAT reversed (Ward and Rimer LJJ, Lawrence Collins LJ dissenting on a purposive reading of the Directive) [70], [86]. The case is authority against, not for, treating a stage-managed administration as automatically unfair.
TUPE; service provision change. Service provision change under reg 3(1)(b) TUPE 2006 is a wholly new, purely domestic statutory concept which is not to be glossed with the EU case law on economic entities: the tribunal asks, in a common-sense and pragmatic way, whether the activities carried on by the putative transferee are fundamentally or essentially the same as those carried on by the putative transferor. That is a question of fact and degree with which the EAT will rarely interfere; changes in location or method of delivery do not necessarily prevent an SPC.
TUPE; dismissal; dismissal by administrators to make the business more saleable is not an ETO reason.
TUPE; Vicarious liability; held (controversially) that an employer's vicarious liability for a transferring employee's tort transferred to the transferee under TUPE reg 4(2)(a). Distinguished and doubted in Sean Pong Tyres Ltd v Moore.
TUPE; service provision change; the same client throughout. An employee managing a property portfolio moved, via the outsourcing of that work, from Waterbridge to WCP and then, when receivers appointed by the mortgagee took control of the properties, into the personal employment of Mr Hunter, who supplied the team to the receivers' agents. The Court of Appeal (Elias LJ) held there was no service provision change under reg 3(1)(b): 'the client' in reg 3(3)(a) refers to a specific client, and the provision presupposes the same client throughout, whether the change is outsourcing, a change of contractor or bringing the work back in house. The regulation is domestic legislation, not implementing EU law, and is not to be given an artificial or expanded meaning [22]-[23], [37], [39]. Whether reg 3(1)(a) applied could not be inferred from the transfer of an organised group of employees alone; a transfer of an undertaking is a different concept requiring the multi-factorial assessment [45]-[46]. Appeal dismissed [49].
TUPE; organized grouping; a single employee spending 100% of time on a client account is not automatically an 'organized grouping'.
TUPE; automatically unfair dismissal; reason for dismissal. The Court of Appeal dismissed the transferee's appeal. Under reg 7(1) TUPE 2006 the question is whether the transfer was the sole or principal reason for the dismissal, a question of fact for the tribunal [23]. The employee was dismissed on the eve of the transfer because the transferee did not want her, its reason being her poor relationship with a colleague about to become a director. That the reason was personal to her did not defeat the claim: the tribunal was entitled to find that the transferee's unwillingness to take her on, rather than the relationship with the transfer as mere coincidence of timing, was the principal reason [20], [23], [25]. TUPE is not a 'but for' jurisdiction; the dicta in Smith v Brooklands College do not assist [22].
TUPE; Equal Pay; employees can compare terms with employees of the transferor post-transfer.
TUPE; fragmentation; CJEU authority allowing for the splitting of an employment contract between multiple transferees.
TUPE; service provision change; employment contracts can be split between multiple transferees.
TUPE; benefits; Share Incentive Plans (SIPs) transfer under TUPE even if they arise from a separate contract to the employment contract.
TUPE; service provision change; analysis of whether activities are 'fundamentally the same' pre- and post-transfer.
TUPE; transfer of liability; discrimination by a transferring employee. The EAT (Judge Stout) held that an employer's liability under ss.39 and 40 of the Equality Act 2010 for discrimination and harassment by one of its employees is a primary liability, not a vicarious one, so it does not pass to a transferee under reg 4(2)(a) merely because the perpetrator's employment transferred; the same applies to liability for the resulting constructive dismissal [32]-[33]. Doane v Wimbledon FC, a county court decision that a transferor's vicarious liability in negligence transfers with the tortfeasor, was persuasive on its own facts but does not govern statutory liability under the 2010 Act [30]-[32]. The victim, whose own employment had not transferred, keeps his claim against the original employer. The employer's appeal against the refusal of its late amendment to plead the transfer was dismissed [47].
TUPE; vicarious liability; reg 4(2)(a); 'in connection with'. A hospital in-patient sued the operator, H Ltd, for wrongs by two of its employees whose employment later transferred under TUPE to AYP Ltd. On a preliminary issue the High Court (HHJ Bird) held that none of H Ltd's alleged vicarious liability for those employees' torts or breaches of human rights passed to AYP Ltd. Liabilities that transfer under reg 4(2)(a) are those sufficiently closely connected with the contract of employment, meaning fundamental parts of the employer and employee relationship; vicarious liability to a third party is not one. The judge agreed with much of Sean Pong Tyres Ltd v Moore but declined to follow Doane v Wimbledon Football Club, which had weighted the words of reg 4(2)(a) over its purpose. The claim remained against the original employer.
TUPE; discrimination; cleaners' pay. The EAT held that outsourced cleaners transferred in-house could not use S.41 EqA to claim pay parity with Trust employees, following the Court of Appeal's analysis in Boohene v Royal Parks Ltd. However, the tribunal erred in its approach to the cleaners' claims under S.39 EqA: after a TUPE transfer, the Trust's failure to uplift their pay to match comparable existing employees was an act of indirect race discrimination, given the significant BAME disparity and the Trust's contractual power to harmonise terms.
TUPE; Vicarious liability; rejected the view that a third party could sue the transferee based on secondary liability arising from the actions of an employee whose contract of employment has been transferred. The liabilities to which TUPE refers in Reg 4(2)(a) are liabilities owed to the person transferred, not liabilities owed to third parties.
TUPE; variation of terms; a contractual right to vary terms does not override TUPE protection against material detriment.
TUPE; Vicarious liability; established that the transferee was liable under s.109 EqA for acts of sexual harassment carried out pre-transfer by an employee of the transferor who did not transfer, because the harassment was a 'continuing act' extending post-transfer.