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
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 1981
England and Wales
Citing:
Applied – Pickstone 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 from – Litster 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 . .
Cited by:
Cited – M Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – C R Smith Glaziers (Dunfermline) Limited v Commissioners of Customs and Excise HL 20-Feb-2003
The taxpayer sold double glazing, supported by an insured guarantee, for which a charge was made. The additional charge was exempt, but it was contended that the contract should have stated the amount pursuant to Note 5.
Held: The contract . .
Cited – Lonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .
Cited – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
Cited – Attridge Law (A Firm of Solicitors) v Coleman and Law EAT 20-Dec-2006
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .
Cited – Lassman and Others v Secretary of State for Trade and Industry CA 19-Apr-2000
The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further . .
Cited – Shanning International Ltd (in liquidation) v Lloyds Bank plc Lloyds Bank plc v Rasheed Bank HL 2-Jul-2001
Under a series of cross guarantees, equipment was supplied to Iraq. Final payment was due on delivery of the final equipment. Before it could be delivered, the prohibitions came into effect against satisfying or making any claims in connection with . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national . .
Cited – Kimberley Group Housing Ltd v Hambley and others (UK) Ltd EAT 25-Apr-2008
EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
Cited – Russell and Others v Transocean International Resources Ltd and Others SC 7-Dec-2011
russell_transocean
The appellants worked on various shifts for the defendants in off-shore oil-fields. They were given on-shore rest breaks, which the employers said should count toward their holiday entitlements.
Held: The Court dismissed the employees’ appeal . .
Cited – Birmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
Lists of cited by and citing cases may be incomplete.
Employment, Scotland, European
Leading Case
Updated: 02 November 2021; Ref: scu.195719