EAT Burton J considered the cases of ECM and Betts as to whether there had been a transfer of the undertaking saying: ‘but what the Court of Appeal in Betts did not say, and indeed the Court of Appeal in ECM did not say, is that if there be a finding of fact by a tribunal that there was a deliberate decision by a possible transferee not to take on any of the possible transferor’s staff, in order that, or with the intended result that, [TUPE] should not apply, then in such a circumstance all the employees are deemed to have been transferred.
In any event, if the ‘reason why the employees were not appointed by ECM’ is to be left to be considered as a factor by the employment tribunal, the interpretation and the weight must also be for them. Is subjective intention or motive, or objective purpose or effect to be judged? It may be difficult if not impossible to differentiate – if it is relevant to do so – between a decision not to take on any staff because it is desired to avoid, or not to trigger, the Regulations of 1981, a decision not to take on any staff with the effect that the Regulations do not apply and a decision that, because it is not intended to take on any staff, the Regulations do not apply . . On the one hand there will no doubt be scrutiny by the Employment Tribunal of the transactions, on the other hand the fact that there is not a transfer, because no transfer of staff, cannot itself lead to a conclusion that there is a transfer.
Mummery LJ in the Court of Appeal in ECM . . is at pains to point out, not only, as Morison P himself had done in the Appeal Tribunal, that the issue arose out of a finding by the employment tribunal, but also that, again as Morison P had concluded . . such factor did not, on the facts of ECM, stand alone as the only basis for the conclusion that there had been a transfer. ECM is thus not itself a case which would support, or at any rate exemplify, a proposition that, in the absence of a transfer of any assets or any staff, or of any other material factor indicating a transfer, the ECM point alone would be determinative of the issue of transfer.
It is in all those circumstances that Mummery LJ’s guidance remains, at 1169E-F, simply that ‘the tribunal was entitled to have regard, as a relevant circumstance, to the reason why those employees were not appointed by ECM’.’
Judges:
Burton J
Citations:
EAT/1051/98, [2000] UKEAT 1051 – 98 – 1804
Links:
Citing:
See Also – Whitewater Leisure Management Ltd v Barnes and others EAT 21-Jan-1999
. .
Cited by:
Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 06 June 2022; Ref: scu.171838
