EAT TRANSFER OF UNDERTAKINGS – Consultation and other information
Employer facing insolvency contemplates transfer of both parts of his undertaking but eventually the liquidator transfers only one part, the other being closed down – Claimants, who are employed in the part which is closed down, are dismissed and bring proceedings for, inter alia, breach of the information and consultation obligations under regulation 13 of TUPE. Claim is against the transferee as well as the employer by reason of the joint liability provision under reg. 15 (9) – Claim upheld on the basis that the Claimants were ‘affected employees’ by reason of having been excluded from the eventual transfer notwithstanding the original intention that they would be included.
HELD, allowing the appeal, that the Claimants were not ‘affected employees’ because:
(1) As regards the transfer as it eventually proceeded, i.e. of the part of the business in which the Claimants were not employed, such indirect impact as that may have had on the part in which they were employed did not make them ‘affected employees’.
(2) As regards the earlier intended transfer of both parts of the business, no claim could be brought in respect of a transfer which had not in fact proceeded.
Judges:
Underhill J
Citations:
[2013] UKEAT 0224 – 12 – 2504, [2013] IRLR 605
Links:
Jurisdiction:
England and Wales
Employment
Updated: 17 November 2022; Ref: scu.473019