TUPE 2006 Flashcards
the court stated that when interpreting its definition under TUPE it is important to consider:
- the type of undertaking or business
- whether the assets tangible/intangible are transferred
- whether the employees are taken over
- whether the customers are transferred
- the degree of similarity between activities carried on before and after the transfer
the court confirmed that when considering whether a transfer is covered by TUPE, all of the above points are to be considered with no single respect being decisive in isolation
Spijkers Case
it was held that TUPE also applies where the part of the business transferred was not a discrete economic entity
Fairhurst v Botes Building Ltd
the EAT further clarified the definition of a traditional transfer by stating that attention should be paid to the way work is organised, rather than on whether there is an activity or service
Cheeseman v Brewer Contracts
the EAT provided some guidelines on the definition of an “organised grouping of employees”
Argyll Coasting Services v Stirling
even where one employee worked all his time on this one client but others also dealt with the client as well as dealing with others, there was no transfer as there was no overall grouping of employees working for the client
Seawell v Ceva
a single employee could constitute an organised grouping for TUPE where they have been instructed by the employer to carry out all activities necessary to provide services for the client
Rynda (UK) Ltd v Rhijnsburger
7 employees were dismissed as the employer had split their job functions and redistributed those functions across several different sites - this was considered and ETO reason as it entailed changes in the job functions of the workforce
Osborne v Capita Business Services
the ETO justification would not apply to situation where the transferor anticipates redundancies after the transfer and carries out those dismissals before the transfer
Hynd v Armstrong and others
it was held that an economic reason must relate to the conduct of the business, therefore dismissal of an employee by the transferor as a means of facilitating the transfer was not an ETO reason, the court stated that to allow it would “defeat the purpose of TUPE” by allowing employers to justify dismissing employers as necessary for the transfer
Wheeler v Patel
redundancy of an employee before the specific transferee has been identified but the idea of the transfer was in the mind of the employer at the time of the dismissal is still automatic unfair dismissal
Spaceright Europe v Balliavoine
the employee can claim unfair dismissal if the employer has made a substantial change to the working conditions of the employee to their detriment
Tapere v South London & Maudsley NHS Trust
