Insights & News

Pre-transfer dismissal was by reason of transfer and automatically unfair

09 April 2019

The Court of Appeal (“CA”) has upheld a decision that the dismissal of an employee immediately before a TUPE transfer was automatically unfair because the principal reason was the transfer. The CA rejected the transferee employer’s contention that the reason for the dismissal was personal to the employee’s circumstances and so unrelated to the transfer.

High Court construes TUPE indemnity

08 April 2019

The High Court (“HC”) has considered whether a TUPE indemnity for employment payments “which fall due” prior to the transfer date included sums whose payment dates had not yet crystallised.

Fragmentation of activity may preclude service provision change

06 September 2018

The Employment Appeal Tribunal (“EAT”) has confirmed that when considering whether or not there has been a TUPE service provision change (“SPC”), it is critical to identify the relevant activity. The analysis must be done in the right order and any fragmentation should be considered when considering if activities carried on by the subsequent service provider are fundamentally the same as those carried on by the outgoing service provider.

TUPE and the transfer of public administrative functions

06 September 2018

In a case about whether TUPE applied to the transfer of a public health team commissioning services, the Employment Appeal Tribunal (“EAT”) has considered points of appeal in relation to two seldom litigated provisions of TUPE.

Five-month cessation of activities does not prevent transfer of undertaking under EU law

04 September 2018

In a Spanish case, the European Court of Justice (“ECJ”) has ruled that a five-month break in activities between outsourcing contracts did not prevent the transfer of an undertaking under the 2001 EU Acquired Rights Directive (“ARD”).

Richard Moore writes for Law360: UK Employment Law Risks In Cross-Border M&A

Press

11 June 2018

In an article for Law360, Richard Moore discusses the employment law considerations U.S. companies need to think about when acquiring U.K. based companies or assets, due to a number of differing fundamental employment principles.

Alison Clements writes for People Management: Legal TUPE and cross-border transfers explained

Press

20 April 2018

In light of recent Employment Appeal Tribunal (EAT) ruling, Alison Clements discusses how TUPE applies in an offshoring situation, in an article for People Management.

Further clarity on relevance of TUPE following a share sale

31 January 2018

How relevant is TUPE in the context of a share sale? A recent decision of the Employment Appeal Tribunal (“EAT”) provides a reminder that TUPE can easily come into play when a buyer is considering what to do with its newly acquired subsidiary. In this case, the buyer’s actions led to an unexpected TUPE transfer and a £3.5 million bill.

When does service provision change amount to transfer of an economic entity?

31 January 2018

The European Court of Justice (“ECJ”) was recently required to consider whether the award of a service contract to a replacement contractor in Portugal amounted to the transfer of an economic entity under the EU Acquired Rights Directive (“ARD”). Portugal has no equivalent legislation to the UK’s service provision change (“SPC”) rules

TUPE and offshoring

30 January 2018

In a recent case, the Employment Appeal Tribunal (“EAT”) was asked to consider the application of TUPE in the context of an offshoring of services and whether a transferring employee was entitled to protection of his salary terms if he relocated to the new place of operations in the transferee’s home jurisdiction.

Advocate General suggests no transfer on change of music school contractor

26 January 2018

An Advocate General (“AG”) of the European Court of Justice (“ECJ”) has considered whether a transfer of an undertaking occurred where a contract to operate a Spanish music school was terminated and another contractor resumed the service five months later. Under the EU Acquired Rights Directive (“ARD”), a transfer of an undertaking occurs where there is a transfer of an economic entity which retains its identity. An economic entity consists of an organised grouping of resources (i.e. persons and assets), organised with a view to carrying on economic activity.

Equal pay, TUPE and insolvency

24 January 2018

The issue for the Employment Appeal Tribunal (“EAT”) in a recent case was what happens to historic equal pay liabilities when claimant employees transfer under TUPE on to a new employer in the context of the transferor employer’s insolvency.

Employee liability information is not limited to contractual matters

25 September 2017

The Employment Appeal Tribunal (“EAT”) has ruled that the employee liability information (“ELI”) that a transferor is required to provide under regulation 11 of TUPE is not limited to contractual entitlements. In addition, the EAT decided that there is no obligation on the transferor to set out whether any entitlement is contractual or not.

Service provision changes – determining principal purpose of organised grouping

25 September 2017

The EAT has given guidance on the correct approach to determining the “principal purpose” of an organised grouping of employees within the meaning of the service provision change (“SPC”) rules under TUPE.

Automatic transfer of employees applies on ‘pre-pack’ sale

25 September 2017

The European Court of Justice (“ECJ”) has confirmed that, in the event of a “pre-pack” sale aimed at rescuing all or part of an insolvent undertaking as a going concern, EU transfer of undertakings law requires that the employees automatically transfer. This is consistent with the position in the UK under TUPE.

Bid to object to transfer fails because TUPE did not apply

22 September 2017

The High Court has considered an employee’s attempt to escape a lengthy period of garden leave by objecting to a TUPE transfer when his employer was going through a change in ownership. This was a creative attempt by the employee to avoid his contractual notice obligations, but he ultimately failed due to the lack of one key ingredient - a TUPE transfer.

Continuous service for notice pay preserved on transfer

22 September 2017

The European Court of Justice (“ECJ”) has considered an interesting TUPE issue concerning continuous service, arising in a case referred by the Swedish Labour Court.

Test for ‘old-style’ transfer of economic entity requires multifactorial approach

08 March 2017

The Employment Appeal Tribunal (“EAT”) has ruled that an employment tribunal, in finding that the termination of a franchise agreement gave rise to a relevant transfer under TUPE, made the mistake of focusing on one particular factor and failing to adopt a multifactorial approach assessing all the relevant circumstances.

Confirmation that collectively agreed terms are ‘static’ for transferring employees

08 March 2017

In two joined cases referred to the European Court of Justice (“ECJ”) by the German Federal Labour Court, an Advocate General (“AG”) has handed down an advisory opinion on the effect of a TUPE transfer on employment terms governed by a collective agreement.

Activities fundamentally the same despite alterations to location and scope of service

01 March 2017

The Employment Appeal Tribunal (“EAT”) has upheld an employment judge’s decision that a service to provide accommodation-based support services for homeless people had remained fundamentally the same before and after a TUPE service provision change (“SPC”), despite alterations to the location and scope of the service.