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…
Continue reading

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…
Continue reading

Summary: Is the removal by an employer of an ‘outdated and unjustified’ contractual allowance void under TUPE when it comes after a transfer?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…
Continue reading

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…
Continue reading

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…
Continue reading

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…
Continue reading

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…
Continue reading

Summary: Is there a TUPE transfer when an employee’s employment is transferred from a sole employer to a group of companies which includes the original employer? No, says the EAT in Hyde Housing Association Ltd and other v Layton available here. Facts: The employee worked as a decorator for a company, Martlet, which in 2008 became…
Continue reading

Summary: Is an employee who is permanently off work due to sickness and receiving Permanent Health Insurance (PHI) “assigned to” a particular grouping of employees on a TUPE service provision change? No, held the EAT in BT Managed Services Ltd v Edwards available here. Background: The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)…
Continue reading

Summary: Does TUPE apply where services have been subcontracted and the original client intends to bring the services back in-house? Yes it can, says the EAT in Jinks v London Borough of Havering (available here) if the subcontractor’s client is the original client. Background: TUPE covers two types of transfer: (1) the traditional “transfer of…
Continue reading