A company owned subsidiary companies in the printing industry at Maidstone, Basildon and St Albans. Three employees worked for the group. The Maidstone business was transferred in a transfer to which the 1981 Regulations applied. The three employees who worked for the group were not on the list of those employees who were to be transferred. When they complained an Employment Tribunal found that they spent some of their time working for the undertakings at Basildon and St Albans but 80 per cent of the time, broadly speaking, in each case working for the Maidstone operation.
Held: The appeals failed. The Employment Tribunal had been entitled to conclude that those employees were transferred with the Maidstone operation notwithstanding that some of their duties, no doubt on a somewhat fluctuating basis we might add, were performed for others than Maidstone. Morison J said that it was helpful to consider as a factual situation the following: ‘X has a business in which he employs a number of people. X transfers part of his business to Y. In order to determine which employees were employed by X in the part transferred it is necessary to ask: which of X’s employees were assigned to the part transferred – see Botzen. In Gale [1994] IRLR 292 it was suggested that the question might be asked whether a particular employee was ‘part of the . . human resources’ of the part transferred, which is the same thing put another way. The contracts of employment of those who were so assigned will, unless the employees object, pass over to the transferee, thus giving effect to the purpose of the Regulations and the Acquired Rights Directive, pursuant to which they were made, that an employee should not forfeit his job because of a change in the identity of his employer. . . There will often be difficult questions of fact for Industrial Tribunals to consider when deciding who was ‘assigned’ and who was not. We were invited to give guidance to Industrial Tribunals about such a decision, but decline to do so because the facts will vary so markedly from case to case. In the course of argument a number were suggested, such as the amount of time spent on one part of the business or the other; the amount of value given to each part by the employee; the terms of the contract of employment showing what the employee could be required to do; how the cost to the employer of the employee’s services had been allocated between the different parts of the business. This is, plainly, not an exhaustive list; we are quite prepared to accept that these or some of these matters may well fall for consideration by an Industrial Tribunal which is seeking to determine to which part of his employer’s business the employee had been assigned.’
Judges:
Morrison J
Citations:
[1995] UKEAT 47 – 95 – 1506, [1995] IRLR 633
Links:
Statutes:
Transfer of Undertaings (Prorection of Employ,ent) Regulations 1981
Jurisdiction:
England and Wales
Citing:
Applied – Arie Botzen And Others v Rotterdamsche Droogdok Maatschappij Bv ECJ 7-Feb-1985
ECJ Article 3(1) covered the rights and obligations of the transferor arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, . .
Cited by:
Cited – Kimberley Group Housing Ltd v Hambley and others (UK) Ltd EAT 25-Apr-2008
EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 18 June 2022; Ref: scu.209181