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 ECM point should have been injected into the (otherwise correctly applied) Spijkers test. Appeal dismissed.
Judges:
The Honourable Mr Justice Burton
Citations:
UKEAT/0971/03, [2004] UKEAT 0970 – 03 – 2005
Links:
Statutes:
Transfer of Undertakings (Protection of Employment) Regulations 1981
Citing:
Mentioned – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
Held: The regulations did not require that in order to be governed by the regulations, a business . .
Cited – Fairhurst Ward Abbots Ltd v Botes Building Ltd and Another EAT 27-Mar-2003
The company claimed that on the transfer of its business, the fact that the undertaking would be conducted by more than one company meant that the regulations did not apply.
Held: A substantial protection for employees would be lost if the . .
Cited – Spijkers v Gebroeders Benedik Abattoir ECJ 18-Mar-1986
ECJ Social policy – approximation of laws – transfers of undertakings – safeguarding of employees’ rights – Directive no 77/187 – transfer – meaning
(Council Directive no 77/187, art. 1(1).
The . .
Cited – Foreningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall A/S ECJ 10-Feb-1988
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run . .
Cited – Suzen v Zehnacker Gebaudereinigung Krankenhausservice (Judgment) ECJ 11-Mar-1997
A transfer of a contract to provide business services, without the transfer of significant assets was not a transfer of an undertaking within the Directive. Nevertheless the transfer of tangible assets was only one factor among several. . .
Cited – ADI (UK) Limited v Firm Security Group Limited CA 22-Jun-2001
ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a . .
Cited – Brookes and 334 Others v Borough Care Services and CLS Care Services Ltd EAT 4-Aug-1998
Where a transfer of a business had been arranged by way of a transfer of shares rather than of the business and particularly in order to avoid the Regulations, the transfer of shares took effect as a transfer of the undertaking and so the . .
Cited – ECM (Vehicle Delivery) Services Ltd v B Cox and others CA 22-Jul-1999
Employees within a unit, who were employed to satisfy requirements of a particular contract in one firm, had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract . .
Cited – Whitewater Leisure Management Ltd v L Barnes and others EAT 18-Apr-2000
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 . .
Cited – RCO Support Services Ltd v Unison and others CA 12-Apr-2002
TUPE . .
Cited – Whitewater Leisure Management Ltd v L Barnes and others EAT 18-Apr-2000
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 . .
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 11 June 2022; Ref: scu.198924