EAT Transfer of undertaking – notification of employee liability information – regulation 11 TUPE
Born had taken over a contract from Spire in circumstances that amounted to a service provision change for TUPE purposes. In providing information to Born prior to the transfer, Spire had stated that a non-contractual Christmas bonus was in place. Born contended that this was wrong: in fact the bonus was contractual in nature and Spire had given incorrect employee liability information for the purposes of regulation 11 TUPE.
Determining Born’s complaint under regulation 12 TUPE, the ET concluded it had no reasonable prospect of success: even assuming the bonus was contractual, regulation 11 had required Spire to provide particulars as defined by section 1 Employment Rights Act 1996 (‘ERA’); that did not require it to state whether or not remuneration was contractual. EU law did not assist Born in this regard. Its complaint was dismissed.
On Born’s appeal.
Held: dismissing the appeal
The ET had correctly construed the obligation upon Spire: section 1 ERA set out the requirements upon an employer in respect of a statement of employment particulars; those particulars were not limited to contractual terms and conditions and there was no obligation to state whether the matters to be set out were contractual or not; specifically there was no such obligation in respect of remuneration (specifying the method by which it was to be calculated did not mean an employer had also to state whether any particular aspect of remuneration was contractual). The EU Directives relied on by Born did not assist: both Council Directive 91/533/EU and Council Directive 2001/23/EC were concerned with entitlements and rights and obligations, more broadly defined than simply those which were properly to be defined as contractual in nature.
Judges:
Eady QC HHJ
Citations:
[2017] UKEAT 0255 – 16 – 2803
Links:
Jurisdiction:
England and Wales
Employment
Updated: 24 March 2022; Ref: scu.582056
