EAT Transfer of Undertakings: Acquired Rights Directive – TRANSFER OF UNDERTAKINGS – Transfer
In circumstances where the Claimant’s employment with M transferred to employment with M and the other Respondents, the ET held that there had been a relevant transfer for the purposes of Regulation 3(1)(a) TUPE. The Respondents appealed.
The appeal raised the following questions: Can there be a relevant transfer for TUPE purposes where: (1) an employee moves from an employment contract with one employer to an employment contract with several employers, including the original employer (the joint employment issue)? and (2) the economic entity transfers to multiple transferees, including the original transferor (the multiple transferee – or transferor as transferee – issue)?
Held:
Allowing the appeal. Although Regulation 3(1)(a) TUPE did not preclude a relevant transfer to multiple transferees, where the transferor remained liable for the Claimant’s employment the situation would not fall within the protection of TUPE or the ARD. That was so as a matter of construction; it was also consistent with the protective purpose of the ARD, which did not extend to those cases where the employee’s legal position vis-a-vis the employer was unchanged. That being so, the appeal would be allowed and the ET’s decision substituted by a finding that there had been no relevant transfer for TUPE purposes on 1 August 2013.
Given the novelty and potential importance of the point, permission was given to the Claimant to appeal to the Court of Appeal.
Eady QC HHJ
[2015] UKEAT 0124 – 15 – 1109
Bailii
England and Wales
Employment, European
Updated: 06 January 2022; Ref: scu.554876