Before the alleged transfer, the undertaking of general building work operations, was carried on by the Northern Ireland Housing Executive through its Direct Labour Organisation then divided into four districts. The employee worked in two units then contracted out to two separate building contractors. In unfair dismissal proceedings it was asked whether there had been a transfer of an identifiable part of an undertaking by the executive to one of the contractors. It was common ground that there were two elements to consider: whether there has been an identifiable undertaking and whether on the facts a transfer had taken place. The court emphasised the need to consider the ‘undertaking’ issue separately from the ‘transfer’ issue. There must have been an economic entity capable of being transferred as a going concern, but that the part of the undertaking transferred did not have to have been regarded by either the transferor or the transferee as a separate or distinct part of it, or to have been separately operated by them. ‘It would not be correct to look at the issue exclusively from the standpoint of either the transferor or the transferee. It is relevant to consider in the first instance whether the transferor regarded the activity in question as a distinct part of his undertaking, for an affirmative answer to that may well settle the matter. It is not, however, conclusive that he did not so regard it or treat it as a separate part of his organisation, if it was in effect an economic entity capable of being transferred as a going concern’
Citations:
[1996] NILR 586
Statutes:
Jurisdiction:
Northern Ireland
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Northern Ireland, Employment
Updated: 21 June 2022; Ref: scu.194786
