TRANSFER OF UNDERTAKINGS – Acquired rights directive
TRANSFER OF UNDERTAKINGS – Transfer
The Employment Tribunal decided that there was no relevant transfer for the purposes of the TUPE Regulations because the case fell within regulation 3(5). The Tribunal rightly rejected arguments that: (a) the transferred public health team’s activity of purchasing or commissioning health services was in itself an economic activity for the purposes of regulation 3(2); and (b) regulation 3(5), if otherwise applicable, did not apply because the transferring entity, a Primary Care Trust, carried on some economic activities.
However, the Employment Tribunal found that all, or almost all, of the work done by the public health team could be, and in fact was, offered by non-state actors operating in the same market. That was a strong indication that the public health team was carrying on an economic activity. Having made that finding, the Employment Tribunal either failed to give adequate reasons for its conclusion or was wrong, if and insofar it concluded that it was a sufficient reason for reaching
that conclusion that the public health team did not bid for contracts and was not trying to obtain business.
The Employment Tribunal was also wrong to conclude that, if there was a relevant transfer, the Claimants’ employment was not transferred pursuant to regulation 4(1) of the TUPE Regulations and they were not entitled to rely on regulation 4(4).
Citations:
[2018] UKEAT 0004 – 18 – 2308
Links:
Jurisdiction:
England and Wales
Employment
Updated: 14 July 2022; Ref: scu.630720