Summary:  Can TUPE apply following a service provision change (due to a re-tendering) to split the contract of a transferring worker between multiple transferees? Yes, held the Employment Appeal Tribunal (EAT) in McTear Contracts Ltd v Bennett & ors and Mitie Property Services UK Ltd v Bennett and others available here. Background:  TUPE covers two…
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Summary:  Are beneficial (as well as adverse) variations to an employment contract void where the principal reason is a TUPE transfer? Yes, held the EAT in Ferguson & Ors v Astrea Asset Management Limited (available here). Background:  Regulation 4(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) renders any variation of a…
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Summary:  Are ‘workers’ and not just employees entitled to the benefits of TUPE? Yes, says an Employment Tribunal in Dewhurst v Revisecatch & City Sprint, available here. Facts:  Ms Dewhurst, and two others were bike couriers for CitySprint until 31 January 2018, when Citysprint lost their contract with HCA Healthcare. The contract was awarded to…
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What do we already know? We updated you in our October 2018 Newsletter Case update 1: TUPE – beware of automatic unfair dismissal that the EAT held that the dismissal of an employee immediately before a TUPE transfer was automatically unfair, even though the dismissal was due in part to the employee’s personal circumstances. What’s…
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Summary:  Was the dismissal of an employee two days before a TUPE transfer automatically unfair, despite being due in part to the employee’s personal circumstances? Yes, held the EAT in Hare Wines v (1) Kaur (2) H and W Wholesale available here.   Background: The dismissal of an employee of the transferor or the transferee is automatically unfair…
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Summary: Is the removal by an employer of an ‘outdated and unjustified’ contractual allowance void under TUPE when it comes after a transfer? No, held the EAT in Tabberer and others v Mears Ltd and Others available here.   Background:  This case concerned the pre-2014 version of the Transfer of Undertakings (Protection of Employment) Regulations…
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HMRC have announced changes in how they enforce National Minimum Wage (NMW) penalties against employers involved in TUPE transfers. See the HMRC update here (at page 4). From July 2018, any liability for historic NMW underpayment or any penalties relating to the underpayment will be enforced against the new employer (i.e. the transferee).  This is…
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Summary:  Does a five month suspension of an undertaking’s activities preclude a TUPE transfer? No, held the CJEU in Colino Siguenza v Ayuntamiento de Valladolid, available here. Facts:  The employee, Mr Colino Sigüenza, was a teacher at a Spanish music school.  He was engaged by a contractor assigned to manage teaching operations on behalf of…
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Summary: Does TUPE Employee Liability Information need to include detail as to whether employees’ entitlements are contractual? No, says the EAT in Born London Limited v Spire Production Services Ltd available here. Facts:  Born took over a contract from Spire to print Sotheby’s catalogues. Prior to the transfer Spire provided Born with Employee Liability Information…
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Summary: For there to be a service provision change under TUPE, how ‘fundamentally’ the same do the activities carried out before and after the transfer need to be? Not very, says the EAT in The Salvation Army Trustee Company v Bahi & Others, available here. Facts: Under TUPE, a service provision change will only occur…
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