EAT Transfer of undertakings – Acquired rights directive / Entity
1. The transferor provided ground handling services to the putative transferee. The Employment Tribunal fell into error in finding that there could be no TUPE transfer, following the insolvency of the transferor, in circumstances where the undertaking said to have been transferred was not a stable economic identity in the hands of then transferor, because there was insufficient dedication of staff, premises and equipment to the transferee’s contract. The Employment Tribunal was bound to consider the position as at the date of the putative transfer and determine whether a stable economic entity existed at that date carved out of the larger entity of which it had formed part when in the hands of the transferor. Fairhurst Ward Abbotts Ltd v Botes Building Ltd [2004] IRLR 304 applied.
2. The TUPE Regulations are capable of applying to any transfers effected consequent upon an insolvency, including in those cases in which the insolvent transferor does not continue to trade, or where no part of its undertaking is transferred as a going concern; Belhaven Brewery v Berekis UKEAT/724/92 followed, Perth and Kinross Council v Donaldson 2004 IRLR 121 not followed.
Judges:
His Honour Judge Serota QC
Citations:
[2007] UKEAT 0603 – 06 – 2706, UKEAT/0603/06/DM, [2007] ICR 1593
Links:
Cited by:
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 11 July 2022; Ref: scu.253736