EAT Transfer of Undertakings : Insolvency – Haulage company B was in severe financial difficulty HMCR had issued a winding-up petition. It ceased to trade on a Friday; on the following Monday the Appellants started to perform B’s major contracts, using B’s ex-employees, save for some who did not wish to accept lower terms as offered by the Appellant. Before B closed, a firm of insolvency practitioners were at B’s premises at B’s invitation. The Tribunal found that there had been a transfer of undertakings from B to the Appellant unless B was ‘under the supervision of an insolvency practitioner within Reg. 8(7) of TUPE 2006, in which case Regs 4 and 7 of TUPE did not apply and the Appellant was not required to take on B’s employees on the same terms. The Tribunal found that the insolvency practitioners were on site only to advise, had never been appointed to act and B was not under their supervision.
Held on appeal that the issue was not one of pure fact and that there needed to be a clear line; Slater v Secretary of State for Industry (2007 IRLR 928) and Key2Law v De Antiquis (2012 URLR 212) followed; they established that an appointment (formal or informal) was necessary before there could be said to be supervision by an insolvency practitioner; in the present case there had been no such appointment. Appeal dismissed.
Jeffrey Burke QC
 UKEAT 0249 – 13 – 1610
England and Wales
Updated: 01 December 2021; Ref: scu.522357