Cunningham and Others -v- Clydebank Engineering & Fabrication Ltd; EAT 18 Oct 2011

References: [2011] UKEAT 0021_11_1810
Links: Bailii
Coram: Lady Smith
EAT Transfer of Undertakings : Transfer
PRACTICE AND PROCEDURE – Striking-out/dismissal
TUPE. Strike out. Claimants claimed – relying on Spijkers v Gebroeders Benedik Abbattoir [1986] 2 CMLR 296 – that they were dismissed because of a relevant transfer. Claims presented against (alleged) transferee company, relying on Litster v Forth Dry Dock and Engineering Co Ltd [1989] SC (HL) 96 and Stirling District Council v Allen & Ors [1995] ICR 1082. Employment Tribunal struck out claims as having no reasonable prospects of success because Claimants were dismissed by the (alleged) transferor not by the (alleged) transferee; there was no need to hear evidence. On appeal, judgment of Employment Tribunal set aside; the Employment Judge had plainly erred in law – since the Claimants were alleging there had been a relevant transfer and that they were dismissed by reason of that transfer, any liability of the transferor had passed to the transferee company. Case remitted to a fresh Tribunal for a pre hearing review to take place at which evidence would be heard and the issue of whether or not there was a relevant transfer (for TUPE purposes) would be determined.

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