Litster and Others v Forth Dry Dock and Engineering Co Ltd: HL 16 Mar 1989

The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation transferred to the transferee.
Held: It is the duty of a UK court to construe a statute, so far as possible, in conformity with European law. The House considered the need to interpret the TUPE regulations purposively: ‘it has always to be borne in mind that the purpose of the Directive and of the Regulations was and is to ‘safeguard’ the rights of employees on a transfer and that there is a mandatory obligation to provide remedies which are effective and not merely symbolic to which the Regulations were intended to give effect’ and where an employee is dismissed before and by reason of the transfer the employment is statutorily continued with the transferee by virtue of the Regulations.’
Lord Keith said: ‘it is the duty of the court to give to regulation 5 a construction which accords with the decisions of the European Court upon the corresponding provisions of the Directive to which the regulation was intended by Parliament to give effect . . this is to be done by implying the words necessary to achieve that result. So there must be implied in regulation 5(3) words indicating that where a person has been unfairly dismissed in the circumstances described in regulation 8(1) he is to be deemed to have been employed in the undertaking immediately before the transfer.’
Lord Oliver said: ‘Where before the actual transfer takes place the employment of a employee is terminated for a reason unconnected with the transfer, I agree that the question of whether he was employed ‘immediately’ before the transfer cannot sensibly be made to depend upon the degree of temporal proximity between the two events, except possibly in a case where they are so closely connected in point of time that it is for practical purposes impossible realistically to say that they were not precisely contemporaneous. Either the contract of employment is subsisting at the moment of the transfer or it is not and if it is not, then, on the pure textural construction of Regulation 5 neither paragraph (1) nor paragraph (2) (which is clearly subsidiary to and complementary with paragraph (1)) can have any operation.’

Lord Oliver, Lord Keith
[1989] 2 WLR 634, [1989] 1 All ER 1134, [1989] ICR 341, [1990] 1 AC 546, [1988] UKHL 10, 1989 SC (HL) 96, [1982] IRLR 161
Transfer of Undertakings (Protection of Employment) Regulations 1981
England and Wales
AppliedPickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Appeal fromLitster and Others v Forth Dry Dock and Engineering Co Ltd SCS 1988
(Second Division of the Inner House of the Court of Session) Twelve applicants worked for an employer who went into insolvent receivership. The receivers agreed to sell the business assets. An hour before completion the workers were dismissed and . .

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Lists of cited by and citing cases may be incomplete.

Employment, Scotland, European

Leading Case

Updated: 02 November 2021; Ref: scu.195719