Transfer of Undertakings
The claimant appealed the Employment Tribunal’s decision that her employment did not transfer to the respondent pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Employment Tribunal rejected the contention that her employment had transferred by virtue of a service provision change within the meaning of regulation 3(1)(b)(iii), finding that the activities carried out before and after the alleged transfer date were not fundamentally the same.
Her appeal was dismissed. The Employment Tribunal had asked the correct question required by regulation 3(2A) and had permissibly concluded for the reasons that it identified that the activities undertaken by the respondent after the alleged transfer date were fundamentally different to those previously carried out by the claimant’s employer. The question was one of fact and degree for the Employment Tribunal’s assessment and no error of law in it approach had been identified. Furthermore, it is apparent from the statutory test and the related caselaw that the focus of the inquiry is upon the activity undertaken and whether and to what degree this has changed after the alleged transfer. The reasons behind the change, if there was a change, are not directly in point (save in so far as they indicate a deliberate engineering to avoid the consequences of the Regulations); if the activity was fundamentally different, it mattered not whether this arose from staff availability or for other reasons. The claimant’s submission that any change stemming from employee availability should be left out of account by the fact-finder was not well founded.
Whilst the Employment Tribunal did not identify the case law that it had relied upon (which would have been preferable), this would only give rise to a material error of law if this had led the Tribunal to ask the wrong question or to give legally erroneous self-directions, which was plainly not the case here.
Citations:
[2022] EAT 124
Links:
Jurisdiction:
England and Wales
Employment
Updated: 14 September 2022; Ref: scu.680606
