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; changing the date of pay payment was a prohibited variation of contract.
TUPE; contracting out; the mere loss of a service contract does not preserve the identity of the entity.
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; multi-factoral test; established the definitive list of factors for determining if an economic entity transferred.
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; 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; a sham redundancy pre-transfer to avoid TUPE liabilities is 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; organized grouping; a single employee spending 100% of time on a client account is not automatically an 'organized grouping'.
EWCA Civ 216 - TUPE; dismissal; dismissal for a reason 'connected to' the transfer is automatically unfair; 'personal reasons' defence failed.
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; Vicarious liability; the transferor's vicarious liability for discrimination/harassment by a transferring tortfeasor does not transfer to the transferee under reg 4(2)(a). The claimant victim (whose employment did not transfer) retains their claim against the original employer.
TUPE; Vicarious liability; where employees whose conduct gave rise to a third-party personal injury claim transferred under TUPE, the transferor's vicarious liability for those pre-transfer wrongs did not transfer to the transferee. The High Court (distinguishing Doane) held that the claimant's 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; 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.