W5 TUPE Flashcards
(109 cards)
1
Q
What does TUPE stand for?
A
Transfer of Undertakings (Protection of Employees)
2
Q
Is TUPE a type of ET claim?
A
No, it is a situation which affects/may give rise to other types of claim.
3
Q
What is the effect of the TUPE Regulations 2006?
A
Where there’s a relevant transfer, employment contracts are not automatically terminated
Employees transfer to new undertaking under original employment contract
Dismissals connected to the transfer will be automatically unfair, save for a genuine redundancy situation
4
Q
What are the types of relevant transfer under TUPE?
A
Business transfer - reg3(1)(a)
Service provision change - reg3(1)(b) and 3(3)(a)
5
Q
What is a “business transfer”?
A
Transfer of whole or part of a business/undertaking, located in UK prior to transfer
6
Q
What is a “service provision change” under TUPE?
A
Where a client does any of the following:
- engages contractor to do work previously undertaken in-house
- reassigns contracted work to new contractor
- brings work back in-house
7
Q
True or False: TUPE does not apply to charities since they don’t operate for gain.
A
False
8
Q
True or False: TUPE does not apply where the business transfer was effected by non-UK parent
A
False
9
Q
True or False: TUPE does not apply where the service provision change related to a non-GB law contract
A
False
10
Q
Elements of a business transfer
A
1) Economic entity
2) Transfer of economic entity
3) Economic entity retains its identity following transfer
4) Economic entity is situated in the UK immediately prior to transfer
11
Q
Spijkers v Gebroeders
A
Facts: EU CoJ. Slaughterhouse employee, slaughterhouse was sold and employees retained by new owner apart from claimant and one other. Transfer included same business activity and transfer of fixed assets, but no transfer of customers. Transferor was insolvent. Claimant brought claim against transferee for unpaid wages post-transfer date, and sought to be re-engaged. Was referred for preliminary ruling - determined that a transfer occurs where the business is disposed of as a going concern, and its operation is continued or resumed by new employer, with same or similar activities.
Significance: When determining whether there is a business transfer, need to determine whether what has been sold is an economic entity that is still in existence after the transfer
12
Q
What is an economic entity?
A
An organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary
Auth: Reg 3(2) TUPE Regulations
13
Q
Does an economic entity need to be a separate company?
A
No
Auth: Fairhurst Ward Abbots v Botes
14
Q
Fairhurst Ward Abbots v Botes
A
Facts: Building contractors providing maintenance services to a local authority. Local authority tendered, new company took over the services but did not take over the employees.
Significance: An economic entity can be an entire business or part of a business. Part of a business does not need to be separately identifiable prior to transfer for TUPE to apply.
15
Q
Cheesman v R Brewer Contracts 2001
A
Facts: Transfer of housing maintenance contract. Claimant was dismissed at time of transfer, and transferee performed the activities without engaging any of the previous staff. Tribunal found there was no transfer since none of the employees transferred. Claimant successfully appealed - EAT held that tribunal should have determined whether there was an economic entity under the regulations and whether it transferred.
Significance: 2-limb test for economic entity transfer. 1) Is there an economic entity (question of fact)? 2) Has it transferred?
16
Q
Considerations for economic entity and retention of identity
A
1) Is the economic entity stable and discrete? i.e. an organised grouping of wage earners and assets enabling exercise of economic activity (and the activity is not limited to performing a specific contract)
2) Is the entity sufficiently structured and autonomous?
May comprise entirely of employees
Identity emerges from workforce, management, organisation of work, operating methods
17
Q
Definition of an economic entity
A
An organised grouping of persons and/or assets enabling exercise of economic activity (and the activity is not limited to performing a specific contract)
Recognised that assets are less important to labour-intensive sectors
Auth: Cheesman v R Brewer?
18
Q
How to establish an economic entity has transferred
A
Consider ALL seven Spijkers factors (not all need to be satisfied, but all must be considered to determine if sufficient proportion transferred):
1) Type of undertaking/business
2) Transfer of tangible assets
3) Value of intangible assets (e.g. goodwill)
4) Whether majority of staff, by numbers or skills, transfer to new employer
5) Transfer of customers
6) Degree of similarity between new and old business
7) Duration of any interruption in activities
19
Q
Suzen v Zehnacker
A
Facts: Claimant was a school cleaner, dismissed after contract was terminated and given to another company. Held that it was not a TUPE if there was no transfer of of significant tangible/intangible assets or transfer of major part of the workforce. Need to consider all Spijkers factors as part of holistic assessment, with criteria weighted depending on transferred activity. Staff as an asset can be evaluated in terms of numbers or skills.
Significance: Application of Spijkers factors
20
Q
If an economic entity transfers, but does not transfer staff, is it still a TUPE?
A
Court will look at the parties’ motives for not taking on employees. If it was to avoid liability under TUPE, then Regs will still apply
Auth: ECM v Cox 1999
21
Q
ECM v Cox
A
Facts: Drivers, assigned to a contract to deliver VAG cars from docks to dealerships. Drivers spent 50% of time on this one contract. Employer lost contract and new supplier did not take on any staff. Was found in tribunal that the new supplier had specifically decided not to take on the staff because they were aware the staff were contemplating unfair dismissal claims against them. Transferee argued TUPE did not apply since the only activity transferred was the service, so no economic entity. Was found that TUPE did apply, the VAG contract was a discrete economic entity, which maintained its identity, and staff were dismissed for reason of transfer, so automatically unfair.
Significance: If try to avoid taking on employees to avoid liability under TUPE, Regs will still apply.
22
Q
What are the types of service provision changes (paraphrased)?
A
1) A service becomes outsourced to a contractor
2) A service is transferred from one contractor to another
3) A service is insourced and the contractor’s contract is terminated
23
Q
When does TUPE not apply re: service provision changes?
A
1) The transfer is for a single specific event/short-term duration
2) The activities concerned are wholly/mainly a supply of goods for client/employer’s use (e.g. stationary)
3) Transactions where no identifiable group of employees is dedicated to servicing client
4) The client changes (McCarrick v Hunter)
24
Q
McCarrick v Hunter
A
Facts: Claimant managed a property portfolio for a company; owner sold the company including C’s portfolio but sale didn’t go through. It had been agreed that C would be TUPE’d, so he continued to manage the portfolio but was paid by new company. New company ceased to manage the properties because the properties were seized by mortgagees of original company, who brought in a new management company. Original owner paid C to help the mortgagees’ property managers. When mortgagees seized, was found not to be a TUPE since the client was different.
Significance: In the rare case that the client of a service provision changes, TUPE does not apply.
25
Does a service provision change for TUPE require an economic entity?
No, it requires an organised group of employees
26
How to determine if there's an organised group of employees for a service provision change (TUPE)?
Employees organised in order to carry out activities as a team (Argyll v Stirling)
Consider activities undertaken immediately prior to transfer, not historical situation (Amaryllis v Mcleod)
Can constitute one person (reg (2)(1))
27
Argyll v Stirling 2011
Facts: Company employed by another to provide a boat and crew for cargo deliveries to Falklands for MoD. Contract expired and MoD entered a charterparty with another, who employed a different crew. Question over whether it was a service provision change. Found that "organised grouping of employees" is a number of employees that is less than the whole of transferor's entire workforce, and organised for the principal (but not necessarily sole) purpose of carrying out the client activities. The particular employee also has to be "assigned" to the organised group.
Significance: An organised group of employees (TUPE/service provision) are employees organised to carry out activities as a team. Claimant needs to be assigned to that organised group that is affected by TUPE.
28
Amaryllis v McLeod 2015
Facts: Company contracted to MoD to renovate their furniture. Lost contract, and another company contracted to both renovate and supply new furniture. New company sub-contracted the renovation to old company. MoD later split the contract into one for supply and one for renovation; first company was given renovation contract for two years, then would go to second company. Second company had bid knowing TUPE would apply, but then didn't bring on any of first company's employees. Question was whether they constituted an organised grouping carrying out relevant activities under reg3(3)(a)(i). Found that, while at some points they had been dedicated to the MoD contract, prior to the latest transfer, they were not.
Significance: To determine if there's been a service provision change, consider the activities undertaken by the organised group of employees immediately prior to transfer, not historical situation.
29
Enterprise Management Services v Connect-Up
Facts: IT services for schools. Employer A performed the contract for 5 years, then declined to bid for extension. New contract did not include support for curriculum software, which had been 15% of A's workload. Employer B won the contract. A expected B to take on their employees. However, work ended up being divided between B and five other providers. Were the activities transferred? Did the fragmentation disapply TUPE? Omission of curriculum work meant the activities were not essentially/fundamentally the same, and the fragmentation took it outside of a service provision change.
Significance: To identify activities for a change of service provision: 1) identify relevant activities carried out by original contractor, 2) are they fundamentally the same post-transfer as pre-transfer, 3) if the same, there is a service provision change if other criteria satisfied/no exceptions
30
What are the elements for a service provision change?
1) Organised group of employees in GB carrying out activities on behalf of a "client" (reg3.3.a)
2) The client intends to transfer the activities to a transferee (reg 3.1.b - outsourcing, insourcing, changing contractor)
3) The activities will remain fundamentally the same post-transfer as immediately prior to transfer (Enterprise Management Services v Connect-Up)
31
Does TUPE sever continuity of employment?
No (reg 4.1 TUPE Regs 2006)
32
Does TUPE change the terms of employment?
No (reg 4.1 TUPE Regs 2006)
33
To which employees does TUPE apply?
Employees employed immediately before transfer/at moment of transfer (SSE v Spence)
Employee would have been employed immediately before transfer but for a dismissal where transfer was sole/principal reason for dismissal
34
SSE v Spence
Facts: Employer went into receivership, dismissed entire workforce at 11 AM and sold the company at 2 PM the same day. New owners re-employed them. Applicants claimed for RP from old employer, since not employed immediately before the transfer. CoA upheld the claim - TUPE provisions cover contracts subsisting at the time of transfer.
Significance: TUPE protects employees employed immediately before/moment of transfer
35
Where TUPE applies, how are the employee's rights against their new employer affected?
They have the same rights against new employer as their old employer
All accrued rights and liabilities (including for claims pre-transfer) transfer
Auth: reg 4(2)
36
What is a "deemed dismissal" under TUPE Regs?
If the employee resigns due to a substantial change in working conditions to their material detriment
Wider than constructive dismissal - does not require repudiatory breach
Auth: Reg 4(9)
37
How to determine a "substantial change in working conditions" for deemed dismissal/TUPE
Interpreted widely
Includes contractual terms and physical conditions
Substantiality is a question of fact
Auth: Tapere v S London and Maudsley NHS Trust 2008
38
How to determine a "material detriment" to person transferred for deemed dismissal/TUPE
Material = not trivial
Consider impact from employee's perspective
Auth: Tapere v S London and Maudsley NHS Trust
39
Tapere v S London and Maudsley NHS Trust
Facts: TUPE resulted in change of workplace, which altered employee's journey and disrupted childcare arrangements. Pre-transfer contract had a MC. Employee resigned in response, claiming repudiatory breach and/or deemed dismissal under reg 4(9). EAT found that the MC should be interpreted based on when entered into - i.e. including locations of transferor, not transferee. As such, was a substantial change. To determine material detriment, it is not to compare employer vs employee and pick which was reasonable; must consider employee's position and ask whether reasonable to in circumstances for them to adopt that position.
Significance: Established tests for "substantial change" (interpreted widely, question of fact) and "material detriment" (not trivial, from employee's POV).
40
Abellio v Musse 2012
Facts: Even though there was a MC in employment contract, a 6 mile move from N to S London resulted in a 1-2 hour increase in working day was a substantial change and material detriment, so qualified for deemed dismissal under TUPE.
Significance: Substantial change/material detriment for deemed dismissal
41
Can an employee object to a transfer under TUPE?
Yes - reg 4.7
42
Does an employee need to know the identity of the transferee to object to the transfer?
No - Secretary of State for Trady & Industry v Cook & Ors
43
Secretary of State for Trade & Industry v Cook & Ors 1997
Facts: Employees were owed money by original employer, now insolvent. Question was whether they had transferred (so new employer liable for debts) or not (so secretary of state liable). When made redundant, e'ees were not told they'd be transferred or the identity of the company's purchaser. EAT decided their right to protest arises even if identity/full situation not known (to discourage employers from concealing situation to avoid objections).
Significance: Employee need not know identity of specific transferee to object to TUPE transfer
44
What is the effect of the employee objecting to the TUPE transfer?
The transfer will terminate their employment, and will be deemed a resignation (unless deemed dismissal or constructive dismissal apply)
Reg 4(8)
45
If an employee objects to the TUPE transfer, then claims deemed or constructive dismissal, who is liable for the resulting claims?
Existing Employer - contract never transferred
Auth: University of Oxford v Humphreys
46
University of Oxford v Humphreys 2000
Facts: A-level exam moderator, proposed to TUPE to a different exam board. Transfer would include a substantial detrimental change to his terms and conditions, so he served a notice of objection. Transfer took place (pre-ERA), and employee claimed damagers against transferor for wrongful dismissal/constructive dismissal. Transferor claimed he had waived his right to constructive dismissal by objecting, and any liability had moved to transferee. Held that since he objected, transfer did not take place, so transferor was liable for the termination. Right to constructive dismissal was not affected. Didn't matter that the employee acted as if he'd been constructively dismissed prior to the transfer; if the change to working conditions was inevitable, then he could still claim constructive dismissal and remedies would be from date of transfer/breach.
Significance: Claims arising from an objection to TUPE transfer should be brought against existing employer.
47
When is a TUPE-related dismissal automatically unfair?
If sole/principal reason for dismissal is the transfer itself (reg 7(1))
Question of fact for Tribunal
48
What is an employer's defence to an automatically unfair TUPE dismissal?
The dismissal was for economic, technical, or organisational (ETO) reasons entailing changes in the workforce before/after transfer.
Includes change in place of work and genuine redundancy situations
Reg 7(2)
49
If sole/principal reason for dismissal is an ETO reason, what will be the fair reason for dismissal?
Presumed redundancy or SOSR
50
If sole/principal reason for dismissal is an ETO reason, is the dismissal automatically fair/no possible claims?
No - procedural fairness still applies, with the usual UFD tests
51
Does TUPE automatic-unfair-dismissal only apply to transferred employees?
No, applies to all employees (reg 7.4)
52
What determines if the sole/principal reason for dismissal was the TUPE transfer?
Question of fact for Tribunal
More likely if dismissal was in close proximity to transfer
If the parties colluded in dismissal, transfer will be principal reason (Wheeler v Patel)
53
Wheeler v Patel 1987
Facts: Employee given notice of dismissal from a shop. Shop was being sold - dismissal date was after exchange but before completion, so wasn't employed immediately before transfer. Held that the transfer occurred on the date of completion, so transferor was liable. Transferor argued that she was dismissed to comply with the sale agreement, so it was an economic reason/fair ETO. This was found not to be a valid ETO - "economic" has a limited meaning re: conduct of business. Achieving a sale or certain price for the business does not relate to the conduct of the business.
Significance: If collusion between parties in a dismissal, then transfer will be principal reason. "Economic" ETOs do not relate to the sale of the business.
54
Hare Wines v Kaur 2019
Facts: C dismissed by transferor on day of transfer, told it was due to cessation of the business. Rest of employees were transferred. Transferee argued reason for dismissal was poor relationship between C and another e'ee who would become her director. Did transferee dismiss her because of the relationship (SOSR) and the date was coincidental, or did the transferee not want to inherit a difficult employee (so automatically unfair)? CoA affirmed that it is for the tribunal to determine principal reason for dismissal on the facts, and in this case was transfer. If the relationship strain was tolerable pre-transfer, but not post-transfer, then the transfer is the cause.
Significance: Principal reason for dismissal is question of fact for Tribunal to determine. Proximity to transfer is not conclusive, but is strong evidence.
55
Spaceright v Baillavoine 2011
Facts: Claimant was CEO of transferor which went into administration. Administrators dismissed claimant and others, later sold the business. On the facts, found that the reason for dismissal was to give the best prospect of selling the business rather than for a reason unconnected to a transfer. Reg 7 does not require a particular transfer or transferee to be in existence/contemplation to make the dismissal automatically unfair. ETO defence was not available, as the change to workforce giving rise to ETO has to be distinct from the purpose of selling it - automatically unfair.
Significance: ETO defence not available re: commercial attraction. Reason of dismissal is question of fact for tribunal. Can be dismissed due to transfer before the sale is in negotiation.
56
Who carries the burden of proof that the sole/principal reason for dismissal was the TUPE transfer?
Tribunal (neutral)
57
Who carries the burden of proof that there was an ETO reason entailing change in workforce?
Employer (transferee or transferor, depending on circumstances of dismissal)
58
Delabole v Berriman 1985
Facts: Post-transfer, employee was offered a reduced rate of pay to put him on the same rate as other employees. He refused and resigned, claiming constructive UFD. Employers argued valid ETO reason. CoA held that standardising pay is not a reason entailing change in the workforce, since a change in the workforce means a change in the overall number or functions of personnel employed.
Significance: Change in number of employees can be an ETO. Harmonisation of contracts is not in itself an ETO.
59
What are the determining factors for which party is liable for a TUPE claim?
The reason for the dismissal
Whether it occurred pre or post transfer
60
If the principal reason for dismissal was the TUPE transfer and thus was automatically unfair, who should the claimant bring the claim against?
The transferee (regardless of when dismissal occurred)
61
If the principal reason for dismissal was the TUPE transfer but there was an ETO reason, and the claimant is claiming procedural unfairness, who should they bring the claim against?
If dismissal was pre-transfer: transferor
If dimissal was post-transfer: transferee
62
If an employee has been TUPE'd and dismissed for reasons other than the transfer, who should they bring their UFD claim against?
If arose pre-transfer: transferor
If arose post-transfer: transferee
63
London United Busways v de Marchi
Facts: Bus driver, TfL retendered bus routes and driver was TUPE'd over. During consultations, became clear he would have to move garages on transfer (long commute) or if he stayed, would have to increase his hours and potentially move garages anyways. He objected and tried to claim redundancy. Employer refused, in the absence of him choosing an available option, transferred him to transferee. He was on sick leave on date of transfer. Employers decided he had transferred under TUPE (even though he had clearly objected per reg 4(7)), and then failed to turn up to work at his new employer, so was summarily dismissed. Question was whether treating his contract as still in force (by sending sick notes to transferor) deprived him of the 4(9) protections, and its interaction with 4(7). EAT decided that an objection will preclude a transfer, and contract will be terminated on transfer date by operation of law, if not earlier by employee/transferee. The material detriment determines whether termination is a dismissal or not.
Significance: An employee objecting to TUPE transfer under reg 4 is treated as having been dismissed (if constructive/deemed dismissal) pre-transfer, no liability for transferee.
64
If an employee is unclear on whether they should bring a claim against their original employer or their TUPE'd employer, what should they do?
They can bring a claim against both
65
When can an employer vary an employment contract due to a TUPE transfer?
If there is an ETO reason entailing changes to workforce (reg 4.5.a)
If the reason for variation is the transfer and the contract permits the variation (reg4.5.b)
If the term is more favourable to employee (employee gets choice between two)
Employee must agree in any of the above cases (4.5.b - will have already agreed to flexibility clause, but normal flexibility rules apply)
66
Is a variation of contract related to TUPE valid if the employee agrees to it?
Not necessarily - if no ETO reason or not permitted by contract, then invalid (Credit Suisse v Padiachy)
BUT if the variation is favourable to employee, then it is valid if agreed regardless of ETO. It will co-exist with pre-variation rights, allowing the employee to choose. (Regent Security v Power)
67
Credit Suisse v Padiachy
Facts: Investment bankers taken over. Transferee renegotiated their terms, some better some worse. Included a 3 month non-compete. Employees agreed to the new terms, subsequently resigned and went to work for competitors, breaching non-compete. Question was whether new terms after transfer were enforceable if on balance were favourable to e'ees. Found that court can't enforce re-negotiated terms arising from transfer, since the rights conferred by EU law were mandatory and unwaivable. Not for court to weigh advantages vs disadvantages of new terms for employees.
Significance: Variation is invalid without ETO reason or express terms permitting it in contract, even if employee agrees.
68
Regent Security v Power 2008
Facts: Pre-transfer contract had a retirement age of 60. Employee agreed to vary on transfer to retirement age of 65. Then was dismissed for retirement at 60. Employee brought UFD claim. Found it was an additional right, rather than replacing previous right, so it was employee's choice to retire at either 60 or 65.
Significance: New terms cannot be imposed on the employee if no ETO - it's their choice.
69
How to determine whether a transfer was the reason for a contract variation
Question of fact
Time between transfer and variation is a factor but not determinative
70
Taylor v Connex 1999
Facts: Following privatisation, claimant was given new contract terms which he annotated before signing, but new employer never agreed, so no new contract existed. As such, old contract terms were still in place per TUPE. Two years later, a new contract was presented to him which was to his detriment (reduced his redundancy benefit), and he refused to sign. E'er dismissed him, found to be SOSR, but was unfair as arose from the TUPE situation, so automatically unfair. Variation occurred two years after transfer, was still deemed the reason.
Significance: Passage of time does not make the TUPE protections expire, as long as chain of causation remains intact.
71
Tabberer v Mears 2017
Facts: Withdrawal of a contractual entitlement to travel allowance following a TUPE. Change was not due to transfer but because the policy was outdated and unjustified (even though it was brought to e'er's attention because of transfer).
Significance: Causation is important re: TUPE claims. Question of fact.
72
Is harmonising employment contracts a valid ETO?
No - must involve more than just a change of terms
Auth: Berriman v Delabole
73
What are the duties of the transferee and transferor in a TUPE situation?
Must provide info to each other
Must provide info and consult employees/representatives who may be affected
Auth: Regs 11-16
74
What information does the transferor need to provide to the transferee re: TUPE?
Affected employees' name, age, s1 statement, disciplinaries/grievances in last 2 years, potential claims, collective agreements
Provided in writing
75
If an employee is dismissed pre-transfer for sole/principal reason of the transfer, does the transferor need to provide their info to transferee?
Yes - reg 11
76
When does the transferor owe the info to transferee?
Minimum 28 days prior to transfer
77
If the transferor fails to provide info to transferee, what happens?
If info not provided within 3 months of transfer, transferee can complain to ET
Remedy is minimum £500/employee
78
Whose responsibility is it to provide info to employees: transferor or transferee?
Both
79
What information do the transferor/transferee have to provide to employees?
A relevant transfer is going to take place
Approximate date
Reasons for transfer
Legal, economic, social implications for affected employees
Any measures (or no measures) envisaged re: employees
80
Who specifically receives the employee info for TUPE transfers?
Union reps or elected employee representatives
If fewer than 10 employees, then direct with employees
81
What is the timeline for transferor/transferee to deliver employee info?
No set time
Long enough pre-transfer for representatives to consult with employees
82
What happens after the TUPE employee information is delivered to representatives?
If more than 10 staff, employer must consult with representatives with a view to seek agreement on intended measures
Must consider representations from reps and, in case of objections, respond with reasons
Must provide facilities to reps for meetings/allow access to affected employees
83
Does an employer have a defence for failing to make TUPE consultations?
If special circumstances made it not reasonably practicable to consult
Very narrow - must be out of ordinary and specific to situation
84
Can an employer refuse to do TUPE consultations do to preserving confidentiality of transaction?
No - desire to preserve confidentiality is not sufficient unless would involve disclosure of sensitive commercial information
Even then, questionable
85
If an employer fails to make TUPE consultations, what is the result?
Employee or transferee can bring a complaint to Tribunal within 3 months of transfer date
Transferee and transferor are jointly and severally liable
Tribunal may award "appropriate compensation" based on:
- Seriousness of failure to comply with duty
- Loss sustained by transferee attributable to the issue
- Will look at warranties, liabilities, and indemnities between transferor and transferee to avoid double recovery
Max award: 13 weeks' pay, uncapped, per employee
86
Does TUPE protect workers?
Unclear - could fall within definition of employee under reg 2(1), but has only been tested at a first instance court
87
Facts: EU CoJ. Slaughterhouse employee, slaughterhouse was sold and employees retained by new owner apart from claimant and one other. Transfer included same business activity and transfer of fixed assets, but no transfer of customers. Transferor was insolvent. Claimant brought claim against transferee for unpaid wages post-transfer date, and sought to be re-engaged. Was referred for preliminary ruling - determined that a transfer occurs where the business is disposed of as a going concern, and its operation is continued or resumed by new employer, with same or similar activities.
Significance: When determining whether there is a business transfer, need to determine whether what has been sold is an economic entity that is still in existence after the transfer
Spijkers v Gebroeders
88
Facts: Building contractors providing maintenance services to a local authority. Local authority tendered, new company took over the services but did not take over the employees.
Significance: An economic entity can be an entire business or part of a business. Part of a business does not need to be separately identifiable prior to transfer for TUPE to apply.
Fairhurst Ward Abbots v Botes
89
Facts: Transfer of housing maintenance contract. Claimant was dismissed at time of transfer, and transferee performed the activities without engaging any of the previous staff. Tribunal found there was no transfer since none of the employees transferred. Claimant successfully appealed - EAT held that tribunal should have determined whether there was an economic entity under the regulations and whether it transferred.
Significance: 2-limb test for economic entity transfer. 1) Is there an economic entity (question of fact)? 2) Has it transferred?
Cheesman v R Brewer Contracts 2001
90
Facts: Claimant was a school cleaner, dismissed after contract was terminated and given to another company. Held that it was not a TUPE if there was no transfer of of significant tangible/intangible assets or transfer of major part of the workforce. Need to consider all Spijkers factors as part of holistic assessment, with criteria weighted depending on transferred activity. Staff as an asset can be evaluated in terms of numbers or skills.
Significance: Application of Spijkers factors
Suzen v Zehnacker
91
Facts: Drivers, assigned to a contract to deliver VAG cars from docks to dealerships. Drivers spent 50% of time on this one contract. Employer lost contract and new supplier did not take on any staff. Was found in tribunal that the new supplier had specifically decided not to take on the staff because they were aware the staff were contemplating unfair dismissal claims against them. Transferee argued TUPE did not apply since the only activity transferred was the service, so no economic entity. Was found that TUPE did apply, the VAG contract was a discrete economic entity, which maintained its identity, and staff were dismissed for reason of transfer, so automatically unfair.
Significance: If try to avoid taking on employees to avoid liability under TUPE, Regs will still apply.
ECM v Cox
92
Facts: Claimant managed a property portfolio for a company; owner sold the company including C's portfolio but sale didn't go through. It had been agreed that C would be TUPE'd, so he continued to manage the portfolio but was paid by new company. New company ceased to manage the properties because the properties were seized by mortgagees of original company, who brought in a new management company. Original owner paid C to help the mortgagees' property managers. When mortgagees seized, was found not to be a TUPE since the client was different.
Significance: In the rare case that the client of a service provision changes, TUPE does not apply.
McCarrick v Hunter
93
Facts: Company employed by another to provide a boat and crew for cargo deliveries to Falklands for MoD. Contract expired and MoD entered a charterparty with another, who employed a different crew. Question over whether it was a service provision change. Found that "organised grouping of employees" is a number of employees that is less than the whole of transferor's entire workforce, and organised for the principal (but not necessarily sole) purpose of carrying out the client activities. The particular employee also has to be "assigned" to the organised group.
Significance: An organised group of employees (TUPE/service provision) are employees organised to carry out activities as a team. Claimant needs to be assigned to that organised group that is affected by TUPE.
Argyll v Stirling 2011
94
Facts: Company contracted to MoD to renovate their furniture. Lost contract, and another company contracted to both renovate and supply new furniture. New company sub-contracted the renovation to old company. MoD later split the contract into one for supply and one for renovation; first company was given renovation contract for two years, then would go to second company. Second company had bid knowing TUPE would apply, but then didn't bring on any of first company's employees. Question was whether they constituted an organised grouping carrying out relevant activities under reg3(3)(a)(i). Found that, while at some points they had been dedicated to the MoD contract, prior to the latest transfer, they were not.
Significance: To determine if there's been a service provision change, consider the activities undertaken by the organised group of employees immediately prior to transfer, not historical situation.
Amaryllis v McLeod 2015
95
Facts: IT services for schools. Employer A performed the contract for 5 years, then declined to bid for extension. New contract did not include support for curriculum software, which had been 15% of A's workload. Employer B won the contract. A expected B to take on their employees. However, work ended up being divided between B and five other providers. Were the activities transferred? Did the fragmentation disapply TUPE? Omission of curriculum work meant the activities were not essentially/fundamentally the same, and the fragmentation took it outside of a service provision change.
Significance: To identify activities for a change of service provision: 1) identify relevant activities carried out by original contractor, 2) are they fundamentally the same post-transfer as pre-transfer, 3) if the same, there is a service provision change if other criteria satisfied/no exceptions
Enterprise Management Services v Connect-Up
96
Facts: Employer went into receivership, dismissed entire workforce at 11 AM and sold the company at 2 PM the same day. New owners re-employed them. Applicants claimed for RP from old employer, since not employed immediately before the transfer. CoA upheld the claim - TUPE provisions cover contracts subsisting at the time of transfer.
Significance: TUPE protects employees employed immediately before/moment of transfer
SSE v Spence
97
Facts: TUPE resulted in change of workplace, which altered employee's journey and disrupted childcare arrangements. Pre-transfer contract had a MC. Employee resigned in response, claiming repudiatory breach and/or deemed dismissal under reg 4(9). EAT found that the MC should be interpreted based on when entered into - i.e. including locations of transferor, not transferee. As such, was a substantial change. To determine material detriment, it is not to compare employer vs employee and pick which was reasonable; must consider employee's position and ask whether reasonable to in circumstances for them to adopt that position.
Significance: Established tests for "substantial change" (interpreted widely, question of fact) and "material detriment" (not trivial, from employee's POV).
Tapere v S London and Maudsley NHS Trust
98
Facts: Even though there was a MC in employment contract, a 6 mile move from N to S London resulted in a 1-2 hour increase in working day was a substantial change and material detriment, so qualified for deemed dismissal under TUPE.
Significance: Substantial change/material detriment for deemed dismissal
Abellio v Musse 2012
99
Facts: Employees were owed money by original employer, now insolvent. Question was whether they had transferred (so new employer liable for debts) or not (so secretary of state liable). When made redundant, e'ees were not told they'd be transferred or the identity of the company's purchaser. EAT decided their right to protest arises even if identity/full situation not known (to discourage employers from concealing situation to avoid objections).
Significance: Employee need not know identity of specific transferee to object to TUPE transfer
Secretary of State for Trade & Industry v Cook & Ors 1997
100
Facts: A-level exam moderator, proposed to TUPE to a different exam board. Transfer would include a substantial detrimental change to his terms and conditions, so he served a notice of objection. Transfer took place (pre-ERA), and employee claimed damagers against transferor for wrongful dismissal/constructive dismissal. Transferor claimed he had waived his right to constructive dismissal by objecting, and any liability had moved to transferee. Held that since he objected, transfer did not take place, so transferor was liable for the termination. Right to constructive dismissal was not affected. Didn't matter that the employee acted as if he'd been constructively dismissed prior to the transfer; if the change to working conditions was inevitable, then he could still claim constructive dismissal and remedies would be from date of transfer/breach.
Significance: Claims arising from an objection to TUPE transfer should be brought against existing employer.
University of Oxford v Humphreys 2000
101
Facts: Employee given notice of dismissal from a shop. Shop was being sold - dismissal date was after exchange but before completion, so wasn't employed immediately before transfer. Held that the transfer occurred on the date of completion, so transferor was liable. Transferor argued that she was dismissed to comply with the sale agreement, so it was an economic reason/fair ETO. This was found not to be a valid ETO - "economic" has a limited meaning re: conduct of business. Achieving a sale or certain price for the business does not relate to the conduct of the business.
Significance: If collusion between parties in a dismissal, then transfer will be principal reason. "Economic" ETOs do not relate to the sale of the business.
Wheeler v Patel 1987
102
Facts: C dismissed by transferor on day of transfer, told it was due to cessation of the business. Rest of employees were transferred. Transferee argued reason for dismissal was poor relationship between C and another e'ee who would become her director. Did transferee dismiss her because of the relationship (SOSR) and the date was coincidental, or did the transferee not want to inherit a difficult employee (so automatically unfair)? CoA affirmed that it is for the tribunal to determine principal reason for dismissal on the facts, and in this case was transfer. If the relationship strain was tolerable pre-transfer, but not post-transfer, then the transfer is the cause.
Significance: Principal reason for dismissal is question of fact for Tribunal to determine. Proximity to transfer is not conclusive, but is strong evidence.
Hare Wines v Kaur 2019
103
Facts: Claimant was CEO of transferor which went into administration. Administrators dismissed claimant and others, later sold the business. On the facts, found that the reason for dismissal was to give the best prospect of selling the business rather than for a reason unconnected to a transfer. Reg 7 does not require a particular transfer or transferee to be in existence/contemplation to make the dismissal automatically unfair. ETO defence was not available, as the change to workforce giving rise to ETO has to be distinct from the purpose of selling it - automatically unfair.
Significance: ETO defence not available re: commercial attraction. Reason of dismissal is question of fact for tribunal. Can be dismissed due to transfer before the sale is in negotiation.
Spaceright v Baillavoine 2011
104
Facts: Post-transfer, employee was offered a reduced rate of pay to put him on the same rate as other employees. He refused and resigned, claiming constructive UFD. Employers argued valid ETO reason. CoA held that standardising pay is not a reason entailing change in the workforce, since a change in the workforce means a change in the overall number or functions of personnel employed.
Significance: Change in number of employees can be an ETO. Harmonisation of contracts is not in itself an ETO.
Delabole v Berriman 1985
105
Facts: Bus driver, TfL retendered bus routes and driver was TUPE'd over. During consultations, became clear he would have to move garages on transfer (long commute) or if he stayed, would have to increase his hours and potentially move garages anyways. He objected and tried to claim redundancy. Employer refused, in the absence of him choosing an available option, transferred him to transferee. He was on sick leave on date of transfer. Employers decided he had transferred under TUPE (even though he had clearly objected per reg 4(7)), and then failed to turn up to work at his new employer, so was summarily dismissed. Question was whether treating his contract as still in force (by sending sick notes to transferor) deprived him of the 4(9) protections, and its interaction with 4(7). EAT decided that an objection will preclude a transfer, and contract will be terminated on transfer date by operation of law, if not earlier by employee/transferee. The material detriment determines whether termination is a dismissal or not.
Significance: An employee objecting to TUPE transfer under reg 4 is treated as having been dismissed (if constructive/deemed dismissal) pre-transfer, no liability for transferee.
London United Busways v de Marchi
106
Facts: Investment bankers taken over. Transferee renegotiated their terms, some better some worse. Included a 3 month non-compete. Employees agreed to the new terms, subsequently resigned and went to work for competitors, breaching non-compete. Question was whether new terms after transfer were enforceable if on balance were favourable to e'ees. Found that court can't enforce re-negotiated terms arising from transfer, since the rights conferred by EU law were mandatory and unwaivable. Not for court to weigh advantages vs disadvantages of new terms for employees.
Significance: Variation is invalid without ETO reason or express terms permitting it in contract, even if employee agrees.
Credit Suisse v Padiachy
107
Facts: Pre-transfer contract had a retirement age of 60. Employee agreed to vary on transfer to retirement age of 65. Then was dismissed for retirement at 60. Employee brought UFD claim. Found it was an additional right, rather than replacing previous right, so it was employee's choice to retire at either 60 or 65.
Significance: New terms cannot be imposed on the employee if no ETO - it's their choice.
Regent Security v Power 2008
108
Facts: Following privatisation, claimant was given new contract terms which he annotated before signing, but new employer never agreed, so no new contract existed. As such, old contract terms were still in place per TUPE. Two years later, a new contract was presented to him which was to his detriment (reduced his redundancy benefit), and he refused to sign. E'er dismissed him, found to be SOSR, but was unfair as arose from the TUPE situation, so automatically unfair. Variation occurred two years after transfer, was still deemed the reason.
Significance: Passage of time does not make the TUPE protections expire, as long as chain of causation remains intact.
Taylor v Connex 1999
109
Facts: Withdrawal of a contractual entitlement to travel allowance following a TUPE. Change was not due to transfer but because the policy was outdated and unjustified (even though it was brought to e'er's attention because of transfer).
Significance: Causation is important re: TUPE claims. Question of fact.
Tabberer v Mears 2017
