Employees who are otherwise qualified employees will transfer with their undertaking even though they are unaware of the identity of their new employer. Morison J considered the situation where there was a transfer of the undertaking, but the employee had not known the identity of the transferee: ‘In relation to the employee who, had he known what was happening, would have objected to being transferred, it seems to us that he has lost nothing of value. Had he objected in time he would have lost his employment without an opportunity of claiming compensation, since he would not have been dismissed (reg. 4B). It is to be noted that Parliament provided that an objector could give notice either to the transferor or to the transferee. If the objector, through concealment, found himself employed by the transferee before he could raise an objection, then it seems to us that the moment he discovered what had happened and that his employer was not the transferor but the transferee, he could leave his employment without liability; at the least, the parties to the transfer would be estopped from denying that the employee had exercised his right to object timeously. Further, it may well be the case that it would be a breach of the employers’ duty of good faith to employees to conceal from them a transfer which has taken place. Whether any such breach would give the employees valuable claims for damages would need examination. Further, an employee has an express right to terminate his contract in the circumstances provided by reg. 5(5).’
The EAT is not bound by its own previous decisions, although they will only be departed from in exceptional circumstances, or where there are previous inconsistent decisions.
Judges:
Morison J P
Citations:
[1996] UKEAT 582 – 96 – 1312, [1997] IRLR 150
Links:
Statutes:
Employment Protection (Consolidation) Act 1978 122
Cited by:
Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 18 June 2022; Ref: scu.208823
