The claimants had been employed by a company with a normal retirement age of 60. The company was sold to British Airways, wher eh normal age was 55. On being obliged to retire the claimed unfair dismissal. They now appealed dismissal of that claim. Held: The applicable normal age of retirement under an employment contract … Continue reading Cross, Gibson v British Airways Plc: CA 11 May 2006
The employees complained that their contracts had been varied after their transfer to a new employer. Held: The reason for the variation was harmonisation. McMullen QC J set out the test for the passage of time after a transfer and its effect on a variation in the contract: ‘I also bear in mind the fact … Continue reading London Metropolitan University v Sackur and others: EAT 17 Aug 2006
Rule 30(6) of the 2004 Rules, which requires sufficient reasons, is intended to be a guide and not a straitjacket so that if it can be reasonably spelled out from a determination that what the rule requires has been provided by the Tribunal, then no error of law will have been committed. Judges: Buxton LJ, … Continue reading Balfour Beatty Power Networks Ltd and Another v Wilcox and others: CA 20 Jul 2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been a transfer over time, so as to diminish their periods of continuous employment. The matter … Continue reading North Wales Training and Enterprise Council Ltd v Astley and others: HL 21 Jun 2006
EAT Transfer of Undertakings: Transfer and Continuity of Employment Relevant transfer under TUPE – employees dismissed for misconduct with internal appeals pending at date of transfer. Appeals heard by Transferor and allowed; reinstatement directed. Whether employed by Transferor immediately before transfer and employment transferred to Transferee. Judges: His Honour Judge Peter Clark Citations: [2006] UKEAT … Continue reading G4S Justice Services (UK) Ltd v Anstey and others: EAT 30 Mar 2006
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment TRANSFER OF UNDERTAKINGS – Dismissal/automatically unfair dismissal REDUNDANCY – Definition Within the Xerox group of companies the work of a Finance Accounting Team was transferred from a UK company in Wakefield to a Philippines company and then taken offshore to Manila. It was agreed that there … Continue reading Xerox Business Services Philippines Inc Ltd v Zeb (Transfer of Undertakings): EAT 24 Jul 2017
EAT TRANSFER OF UNDERTAKINGS – Economic technical or organisational reason PRACTICE AND PROCEDURE – Costs UNFAIR DISMISSAL – Polkey deduction The Respondent resisted claims for unfair dismissal following the loss of a ground handling contract at an airport. Grounds of resistance to ‘ordinary’ unfair dismissal claims were struck out. Economic technical or organisational (‘ETO’) and … Continue reading Swissport Ltd v Exley and Others (Transfer of Undertakings): EAT 13 Jun 2017
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time. Held: The employees’ appeals were dismissed: ‘A statute cannot speak with two different voices at one and the same time. The rule that section 2(4) … Continue reading Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3): HL 8 Mar 2006
EAT Transfer of Undertakings: Entity – TRANSFER OF UNDERTAKINGS – Transfer UNFAIR DISMISSAL – Compensation UNFAIR DISMISSAL – Mitigation of loss UNFAIR DISMISSAL – Polkey deduction In deciding whether Claimants have been assigned to an organised grouping of employees within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 the Employment Judge … Continue reading London Borough of Hillingdon v Gormanley and Others (Transfer of Undertakings: Entity): EAT 19 Dec 2014
Practice and Procedure – Withdrawal During a Preliminary Hearing to consider whether any of the claims should be struck out as lacking reasonable prospects of success or made the subject of deposit orders, the Claimant, who was unrepresented, indicated she was withdrawing her claim for automatically unfair dismissal pursuant to regulation 7(1)(b) Transfer of Undertakings … Continue reading Paul v Virgin Care Ltd: EAT 12 Sep 2019
EAT TRANSFER OF UNDERTAKINGS – Service provision change A Judge was entitled to hold there had been no service provision change where a centralised taxi booking administration service was taken back in house by the client of the service and no longer thereafter operated as a centralised service. The element of centrality, coupled with some … Continue reading Johnson Controls Ltd v Campbell and Another: EAT 14 Feb 2012
EAT TRANSFER OF UNDERTAKINGS – Economical technical or organisational reason ‘Workforce’ in Regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 does not include corporate franchisees. The Respondent’s business model of using franchisees to carry out meter reading rather than employees was long established and made the Respondent more competitive in winning … Continue reading Meter U Ltd v Ackroyd and Others: EAT 28 Feb 2012
EAT TRANSFER OF UNDERTAKINGS – TransferFor there to be a service provision change within the meaning of Regulation 3(1)(b)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the activities carried out by different contractors before and after the transfer must be carried out for the same client. The Employment Tribunal erred in holding … Continue reading Hunter v McCarrick: EAT 13 Dec 2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employmentThe Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE transfer more than two years earlier and was not in order to achieve harmonisation of all employees’ salaries. Judges: McMullen QC J … Continue reading Smith and Others v Trustees of Brooklands College: EAT 5 Sep 2011
Transfer of Undertakings The claimant appealed the Employment Tribunal’s decision that her employment did not transfer to the respondent pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Employment Tribunal rejected the contention that her employment had transferred by virtue of a service provision change within the meaning of regulation 3(1)(b)(iii), finding … Continue reading Tuitt v London Borough of Richmond Upon Thames: EAT 9 Mar 2022
Citations: [2011] EWCA Civ 438 Links: Bailii Statutes: Transfer of Undertakings (Protection of Employment) Regulations 2006 Jurisdiction: England and Wales Employment Updated: 06 September 2022; Ref: scu.432814
The Law Society said that the 2007 Act would involve the transfer of it employees working within the Legal Complaints Service to the new office for Legal Complaints and that the TUPE regulations would apply. Judges: Akenhead J Citations: [2010] EWHC 352 (QB), [2010] IRLR 407 Links: Bailii Statutes: Legal Services Act 2007, Transfer of … Continue reading Law Society of England and Wales v Secretary of State for Justice and Another: QBD 26 Feb 2010
EAT TRANSFER OF UNDERTAKINGS – Consultation and other informationSeller of care home business gave some limited information to employees about impending transfer but failed to arrange for election of ‘appropriate representatives’ as required by reg. 14 of Transfer of Undertakings (Protection of Employment) Regulations 2006 and accordingly gave no information to, and did not consult … Continue reading Todd v Strain and Others: EAT 16 Jun 2010
EAT TRANSFER OF UNDERTAKINGSEconomic technical or organisational reasonThe Employment Tribunal erred in taking into account a perceived breach of the consultation requirements of Transfer of Undertakings (Protection of Employment) Regulations 2006 regulation 13(6) in determining that the dismissals of two sample Claimants were unfair within the meaning of Employment Rights Act 1996 section 98(4). No … Continue reading Nationwide Building Society v Benn and Others: EAT 27 Jul 2010
EAT TRANSFER OF UNDERTAKINGS: Service Provision Change When the NMC after competitive tender gave a new contract for future solicitors’ regulatory services to Capsticks, and none of the work in progress was handed over by Ward Hadaway, and no employee transferred, there was no service provision change under new TUPE 2006. Employment Tribunal Judgment upheld. … Continue reading Ward Hadaway Solicitors v Love and Others (Rev 1): EAT 25 Mar 2010
EAT TRANSFER OF UNDERTAKINGS: Consultation and other informationIn regulation 13 of TUPE the ‘affected employees’ whose representatives the employer must inform and consult about a relevant transfer are those who will be or may be transferred, those whose jobs are in jeopardy by reason of the proposed transfer, and those who have internal job applications … Continue reading Unison v Somerset County Court and Others: EAT 15 Jul 2009
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 employments they had not become employees of the claimant. Held: Where an employee did not know the … Continue reading New ISG Ltd v Vernon and others: ChD 14 Nov 2007
The employer was in financial difficulties. A new company was formed by a customer to acquire its assets, and the employees, including the claimant were taken on by the new company. The claimant was dismissed within a year after. On claiming unfair dismissal, the new company said that he had no continuity of employment from … Continue reading Oakland v Wellswood (Yorkshire) Ltd: CA 30 Jul 2009
Practice and Procedure – Stay – Paragraph 43(6) Schedule B1 Insolvency Act 1986 The Claimant had commenced Employment Tribunal (‘ET’) proceedings against eight Respondents. Subsequently, the first two Respondents (one of which had been the Claimant’s employer) went into administration and a stay was imposed on the proceedings under paragraph 43(6) Schedule B1 Insolvency Act … Continue reading Ince Gordon Dadds Llp and Others v J Tunstall and Others: EAT 19 Jun 2019
Claim for automatic unfair dismissal. Citations: [2011] EWCA Civ 1565, [2012] 2 All ER 812, [2012] ICR 520, [2012] IRLR 111 Links: Bailii Statutes: Transfer of Undertakings (Protection of Employment) Regulations 2006 7(1) Jurisdiction: England and Wales Employment Updated: 07 May 2022; Ref: scu.450055
EAT CONTRACT OF EMPLOYMENT – Notice and pay in lieu Notice and pay in lieu – breach of the implied term of trust and confidence – application of the Johnson exclusion zone The Respondent had determined to dismiss the Claimant due to concerns regarding his performance. To ‘soften the blow’ for the Claimant, who the … Continue reading Rawlinson v Brightside Group Ltd: EAT 21 Nov 2017
Transfer of Undertakings : Service Provision Change – Preliminary issues Transfer of Undertakings (Protection of Employment) Regulations 2006 regulation 3(3)(a)(i) – service provision change – organised grouping of employees – principal purpose Preliminary Issues The Claimants had been employed by the Tees Esk and Wear Valleys NHS Foundation Trust – the Second Respondent before the … Continue reading Tees Esk and Wear Valleys NHS Foundation Trust v Harland and Others: EAT 3 Mar 2017
EAT Transfer of Undertakings – Economic technical or organizational reason PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke Barnet outsourced many of its services to Capita so as to achieve economies. This was a service provision change, to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (before the introduction of Regulation 7(3A)) applied. In the … Continue reading Osborne and 29 Others v Capita Business Services Ltd and 3 Others: EAT 17 Jun 2016
EAT Transfer of Undertakings: Service Provision Change The Appellant ran a ‘park-and-ride’ service under a contract with the local council by virtue of which it received a substantial subsidy. The Second Respondent, having grown impatient with a tendering process, decided to run a commercial service on the same route, using its own staff and buses, … Continue reading C T Plus (Yorkshire) CIC v Black and Others: EAT 3 Aug 2016
EAT Contract of Employment: Implied Term/Variation/Construction of Term – 1. The Employment Judge erred in law in concluding that there was no significant difference between the Securicor contract in the year 2000 and the PCL terms and conditions in 2010. On the true construction of the Securicor contract the employer was obliged to provide full-time … Continue reading Aguebor v Pcl Whitehall Security Group (Debarred), Kingdom Security Group Ltd: EAT 27 Jul 2015
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the business. The union complained that inadequate information had been provided to allow … Continue reading Cable Realisations Ltd v GMB Northern: EAT 29 Oct 2009
EAT Transfer of Undertakings : Service Provision Change – Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) Regulation 3(1)(b) – service provision change (‘SPC’) – ‘the client’ The appeal raised a novel point: whether ‘a’ or ‘the’ client, for the purpose of a SPC transfer under Regulation 3(1)(b) was to be understood solely in … Continue reading Ottimo Property Services Ltd v Duncan and Another: EAT 9 Jan 2015
Employer’s appeal against a decision that the claimant’s employment automatically transferred to it under the 2006 Regulations. Jackson, Kitchin, Floyd LJJ [2015] EWCA Civ 75 Bailii Transfer of Undertakings (Protection of Employment) Regulations 2006 England and Wales Employment Updated: 27 December 2021; Ref: scu.542616
EAT Transfer of Undertakings : Transfer – PRACTICE AND PROCEDURE Appellate jurisdiction/reasons/Burns-Barke Costs Transfer of Undertakings (Protection of Employment) Regulations 2006 – interplay between reg 3(3)(a)(i) ‘organised grouping of employees’ and question of assignment for purposes reg 4 TUPE Service provision change of purpose of reg 3(1)(b) having been conceded, the Employment Judge was required … Continue reading Costain Ltd v Armitage: EAT 2 Jul 2014
EAT Transfer of Undertakings : Transfer – The Employment Judge erred in law by holding that a transferee assumed responsibility as employer for employees of a transferor as referred to by the Court of Justice of the European Union in Celtec v Astley [2005] ICR 1409 when they consulted employees and reassured them that they … Continue reading Housing Maintenance Solutions Ltd v JF McAteer and Others: EAT 1 Aug 2014
Interpretation and operation of certain contractual and statutory provisions relating to pensions benefits, and in particular, contractual provisions for adjustments to the purchase price according to whether or not certain accrued pension liabilities transferred to SCA by operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006 The Honourable Mr Justice Hildyard [2012] EWHC … Continue reading The Procter and Gamble Company v Svenska Cellulosa Aktiebolaget Sca and Another: ChD 14 May 2012
EAT Transfer of Undertakings : Dismissal or Automatically Unfair Dismissal – Economic technical or organisational reason The Employment Judge did not err in holding that dismissals of transferred employees for refusing to work in a different workplace following a transfer of an undertaking were not dismissals which entailed a ‘change in the workforce’ within the … Continue reading NSL Ltd v Besagni and Others and Another: EAT 16 May 2014
EAT Transfer of Undertakings : The approach to be adopted by an Employment Tribunal to the identification of a transfer by way of service provision change for the purposes of reg. 3(1)(b) Transfer of Undertakings (Protection of Employment) Regulations 2006 SI 2006/246. Upholding the Employment Tribunal’s judgment: applying Metropolitan Resources Limited v Churchill Dulwich Ltd, … Continue reading Qlog Ltd v O’Brien and Others: EAT 21 Mar 2014
EAT Transfer of Undertakings : Transfer – The Employment Judge did not err in holding that a hope and wish that following a service provision change activities would be carried out by a transferee in connection with a task of short term duration was not an intention that they would be so carried out. Accordingly … Continue reading Robert Sage Ltd (T/A Prestige Nursing Care Ltd) v O’ Connell and Others: EAT 13 Mar 2014
EAT Redundancy : Collective Consultation and Information – The Appellant is a local authority which was contemplating redundancies of staff and also transfers of some employees to third parties. The Employment Tribunal found that it had breached the consultation and information requirements in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 … Continue reading London Borough of Barnet v Unison and Another: EAT 19 Dec 2013
EAT TRANSFER OF UNDERTAKINGS – Transfer The Employment Judge held that there was a service provision change within the meaning of Regulation 3(1)(b)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 therefore a transfer of an undertaking when the client gave the contract for the work of cladding boilers at a power station … Continue reading Swanbridge Hire and Sales Ltd v Butler and Others: EAT 13 Nov 2013
EAT Transfer of Undertakings : Service Provision Change – JURISDICTIONAL POINTS – Continuity of employmentUnfair dismissal claim. Employee only having sufficient continuity of employment if she could establish an earlier TUPE transfer.Service provision case. Employee in an organised grouping of which she was the only member. Issue whether carrying out the transferred activities was the … Continue reading Rynda (UK) Ltd v Rhijnsburger: EAT 9 Sep 2013
Interpretation of Transfer consultation EAT TRANSFER OF UNDERTAKINGS: Consultation and other information Transfer of undertakings. The Employment Tribunal held that the transferors had failed properly to inform or consult in breach of regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006. They held that the transferors had failed to provide relevant information, … Continue reading Royal Mail Group Ltd v Communication Workers Union: EAT 2 Dec 2008
meter_hardyEAT2012 EAT Transfer of Undertakings : Economic Technical or Organisational Reason – ‘Workforce’ in Regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 does not include corporate franchisees. The Respondent’s business model of using franchisees to carry out meter reading rather than employees was long established and made the Respondent more competitive … Continue reading Meter U Ltd v Hardy and Others: EAT 28 Feb 2012
EAT CONTRACT OF EMPLOYMENTConstruction of termThe Employment Tribunal erred in construing the terms and conditions of employment as permitting the employer to transfer the employee to another location, providing it was reasonable to do so. [2009] UKEAT 0410 – 08 – 1908, [2009] ICR 1563, [2009] IRLR 972 Bailii Transfer of Undertakings (Protection of Employment) … Continue reading Tapere v South London and Maudsley NHS Trust: EAT 19 Aug 2009
EAT Transfer of Undertakings: Entity – In considering whether there has been a service provision change within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 Regulation 3(1)(b)(i) the Employment Judge failed to reach permissible conclusions on the facts. He appears to have relied upon facts which did not support a conclusion … Continue reading Amaryllis Ltd (Formerly of Montrose Road Chelmsford Essex) v Mcleod and Others (: EAT 9 Jun 2016
Royal Mail had transferred some of its businesses. The union complained that the company’s explanation of the effect of the transfer to its members was incorrect in law. The EAT had found that the employer need only tell the employee of its honestly held belief (in this case as to whether automatic transfers would take … Continue reading Royal Mail Group Ltd v Communication Workers Union: CA 14 Oct 2009
. .
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
It is inconsistent with the TUPE regulations to seek to use them to improve an employee’s terms and conditions. Judges: Mummery LJ, Maurice Kay LJ, Wilson LJ Citations: [2007] EWCA Civ 1065, [2008] ICR 341, [2008] IRLR 70 Links: Bailii Statutes: Transfer of Undertakings (Protection of Employment) Regulations 1981 Jurisdiction: England and Wales Citing: Appeal … Continue reading Jackson v Computershare Investor Services Plc: CA 30 Oct 2007
The employees appealed against dismissal of their equal pay claims. They said that having been transferred under a TUPE arrangement, and now having to claim against the new employer, they argued that the six months time limit started from the time of the transfer. Held: The appeal failed. The TUPE regulations would not put an … Continue reading EA Gutridge and Others v Sodexo and Another: CA 14 Jul 2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive TRANSFER OF UNDERTAKINGS: Varying terms of employment As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to pay ‘in accordance with collective agreements negotiated from time to time by [the NJC]’ is protected on a TUPE transfer to the private sector so as … Continue reading Alemo-Herron v Parkwood Leisure Ltd: EAT 12 Jan 2009
EAT Equal pay Act – Out of time The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with their pension rights. Subsequently, NUPE transferred to Unison by way of a trade union amalgamation. The claimants brought their … Continue reading Unison v Allen and others: EAT 26 Jul 2007
TRANSFER OF UNDERTAKINGS – Transfer This issue in the appeal was whether, following a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations2006 (‘TUPE’), the transferor continues to be bound by the duty, pursuant to s.9 of the National Minimum Wage Act 1998 (‘NMWA’), to maintain wage records in respect … Continue reading Mears Homecare Ltd v Bradburn and Others: EAT 2 May 2019
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed. Held: The appeal failed (Lord Carnworth dissenting). That the exact situation might not have … Continue reading The United States of America v Nolan: SC 21 Oct 2015
The employer appealed a finding that there had been continuity of employment between itself and a previous employer. The employees had sought a statement as to their terms of employment. The employer was a training and enterprise council, to whom the employees had first been seconded from the Department of Employment. There was an unresolved … Continue reading Celtec Limited v John Astley Julie Owens, Deborah Lynn Hawkes: EAT 5 Oct 2001
The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time. Held: The effect of the Regulations was to transfer all employment rights unchanged save only the pension obligations. The pension … Continue reading Preston and others v Wolverhampton Healthcare NHS Trust and Others (No 3): CA 7 Oct 2004
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation transferred to the transferee. Held: It is the duty of a UK court to construe a statute, so far as … Continue reading Litster and Others v Forth Dry Dock and Engineering Co Ltd: HL 16 Mar 1989
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national negotiations, and claimed the benefit of increases negotiated after they had been transferred to the appellant. The employer … Continue reading Parkwood Leisure Ltd v Alemo-Herron and 23 Others: CA 29 Jan 2010
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. Held: The purpose of the order was punitive and therefore was not affected by the actual … Continue reading Susie Radin Ltd v GMB and others: CA 20 Feb 2004