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 location and in circumstances, and the EAT found an economic entity. The state of the European and domestic authorities is unsatisfactory. The hearing had taken place between the two ECM judgments. Emphasis is placed on the need to take all relevant factors into account. The present case is to be regarded as an example of a labour intensive case, such as was Suzen, but the EAT had not considered the reason for not taking on the previous employees.
May LJ said: ‘In my view confusion and uncertainty have arisen because the need for a legal transfer or merger, still present in the Directive, has been eliminated by purposive judicial interpretation, yet the perceived need to find a transfer of some kind remains.’
Lord Justice Simon Brown, Lord Justice May, Lord Justice Dyson
 EWCA Civ 971,  3 CMLR 8,  Emp LR 969,  IRLR 542
England and Wales
Considered – 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 . .
Considered – Allen and Others v Amalgamated Construction Co Ltd ECJ 10-Dec-1999
The European rules protecting employees rights on the transfer of undertakings operated also when employees when employees were transferred between two separate companies which were subsidiaries of another. They were legally distinct employers, even . .
Considered – Liskojarvi and Another v Oy Liikenne Ab ECJ 25-Jan-2001
There is an inherent conflict between the need to promote freedom of competition, and the need to restrict competition to promote continuity of employment. The transfer of undertakings regulations must apply to the re-allocation of public service . .
Considered – Betts and others v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd CA 26-Mar-1997
There was no transfer of undertaking where only the employees and no other assets of the business had been transferred. . .
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. . .
Appeal from – ADI (UK) Ltd v Willer and others EAT 18-Apr-2000
EAT The employees appealed against a finding that there had been no transfer of an undertaking when their service business had been sold and they had been dismissed.
Held: The appeal failed. No assets, . .
Cited – 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 – 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.
Updated: 01 June 2022; Ref: scu.160088