Chapter 12 Transfer of Undertakings

Question 1

Give a case example of transfer of undertaking definition

Answer 1

Spijkers v Gebroeders Benedik Abbatoir CV and Alfred Benediken Zonen BV “spijkers” case

Facts
Mr Spikjkers worked in a slaughter house. Business was transferred and only he adn another were not retained.

Decision
Defined transfer of undertaking as:-
transfer of business from one to another whilst retaining identity and following should be considered:-
*type of business
*assets
*employees
*customers
*activity before and after.

Question 2

Give a case example of transfer of undertakings - changes to employment terms and conditions

Answer 2

Berriman V Delabole Slate Ltd (1985)

Facts
Mr B was a quarryman with a guaranteed wage. The new employer wanted to reduce it in line with an existing collective agreement. He resigned and claimed constructive dismissal.

Decision
CA upheld his claim. Although the company had an ETO reason, it didn’t “entail changes to the workforce”.

Question 3

Give a case example of transfer of undertaking - if a transfer exists - “stable economic entity”.

Answer 3

Cheesman v Brewer Contracts (1986)

Facts
Former employees of Onyx claimed redundancy pay and compensation for unfair dismissal.

Decision
EAT noted need to identity a “stable economic entity” as organised grouping of persons and assets enabling or facilitating the exercise of an economic activity which pursues a specific objective. Emphasis on way its organised.

Question 4

Give a case example of transfer of undertakings - service provision change - “organised grouping”

Answer 4

Argyll Coastal Services Ltd v Sterling and Others (2012)

Facts
Crew members of vessel charted by MOD to work in Falklands. Other 2 were office based. EAT didn’t consider reg 3 and 4 but only 3.

Decision
Guidance
* group of employee organised to carry out activity;
*principal purpose doesn’t need to be sole purpose;
*consider what client wanted from organisation.