EAT Transfer of Undertakings : Transfer – TRANSFER OF UNDERTAKINGS – Insolvency
The Appeal
In relation to Regulation 3(3)(a)(ii) of TUPE it is necessary to identify what the client’s intentions were ‘immediately before the transfer’ as to the activity to be carried out by the new contractor after the transfer. This involves identifying both the activity or activities and the client’s intentions and that means identifying the underlying task or function of the client, which forms the activity or activities, the subject of the transfer, and the client’s intentions in relation to the carrying out of the activity or activities by the new contractor. Finally what has to be decided is whether the client intends the new contractor to carry out that activity or activities in the context of a single specific event or of a task of short duration.
It is important for Employment Tribunals in this relatively complicated statutory framework to be left to make the simple factual decisions, which are called for by the text of the statutory instrument. That is what the Employment Tribunal had done and the appeal was dismissed.
The Cross-Appeal
The decision as to whether or not there has been a transfer of a service provision change under Regulation 3(1)(b)(ii) of TUPE, and, if so, when, involves an objective assessment of the facts, in which, although the subjective intention of the parties is a relevant consideration, it is not a determinative factor; Celtec Ltd v Astley and Ors [2005] IRLR 647 and Housing Maintenance Solutions Ltd v McAteer and Ors [2015] ICR 87 considered. The Employment Tribunal had misdirected itself as to the significance of the subjective intention of the parties and had reached a conclusion about the reliability of a piece of evidence, which no reasonable Tribunal properly directing itself could have reached on the evidence. The cross-appeal was allowed and on the basis that evidence should have been regarded as an indisputable fact and in accordance with paragraph 21 of the Judgment of Laws LJ in Jafri v Lincoln College [2014] ICR 920 a finding that the transfer had taken place on 16 November 2009 was substituted for that of the Employment Tribunal that it had taken place the following day.
Hand QC HHJ
[2016] UKEAT 0451 – 15 – 2201
Bailii
England and Wales
Employment
Updated: 14 January 2022; Ref: scu.562528