Sarah King Employment Solicitor Northampton

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You are here: Home / Archives for News / News - TUPE

Employee on long term sick leave did not transfer under TUPE

09/09/2015 by Sarah King Leave a Comment

sick leaveThe Claimant was employed by BTMS Limited as a field operations engineer. His team had its own separate and dedicated structure within the company and its own costs centres. In 2006, the claimant went on long term sick leave and became permanently incapacitated without any prospect of returning to work. He was allowed to remain an employee in order to benefit under the permanent health insurance (PHI) scheme, and even after those benefits extinguished, BTMS Limited continued to make payments to him.

The team to which he was originally assigned transferred to E Limited in 2012. It was an organised grouping of employees having its principal purpose of carrying out activities for the client and, therefore, was covered by the service provision change under Regulation 3(1)b of the TUPE Regulations 2006. However, E Limited argued that the claimant did not transfer as he was not assigned to the group.

The EAT has upheld the Employment Tribunal’s decision that, although there was a link between the Claimant and his team, it was only for administrative purposes and it was not contemplated that the Claimant would thereafter provide any work or carry out any activities for the team. The Employment Tribunal decided that the Claimant ceased to be assigned to the team in 2010. This was upheld by the Employment Appeal Tribunal. It said that a link between the employee and the work carried out was sufficient in itself to constitute an assignment to a relevant organised grouping, but there must be something more than more administrative or historical connection. There must be some level of participation or an expectation of future participation. In this case, there were neither. Given the identity of the team is defined by the work it carries out, a person who no longer plays a part in the performance of that work cannot be a member of the team, and this is not assigned.

This case is most likely to turn on its own facts, as there will be few cases where an employee remains in employment for such a long time after they went off sick without the contract being terminated. This was an unusual case in that the Claimant had both PHI and was indeed retained after the expiry of the PHI in this case.

Tag(s): can employees on sick leave transfer under TUPE, employment advice kettering, employment advice Northampton, employment advice Thrapston, PHI payments, sick leave, TUPE, TUPE advice, TUPE claims

Failure to provide employee liability information under TUPE

05/11/2014 by Sarah King Leave a Comment

employee liability informationAn employment tribunal has ordered a transferee to pay compensation of £65,500, representing £500 for each of 131 employees, to a transferor for failure to provide employee liability information in breach of regulation 11 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 in the case of Eville & Jones (UK) Ltd v Grants Veterinary Services Ltd (In Liquidation). The case concerned a second generation contracting out of services following a re-tendering exercise.

In ordering compensation, the tribunal considered the requirement to make an award that was just and equitable, having regard to the loss sustained as a result of the transferor’s failure to provide the necessary information and the limits on the transferee’s ability to mitigate its loss. The tribunal found that the transferor, who was in severe financial difficulties, had reasonable grounds to believe that its employees might bring claims against the transferee for the salary payments that were due to them at the end of the month before the transfer.

Tag(s): employee liability information under TUPE, employment solicitor Bedford, employment solicitor Raunds, failing to provide employee liability information, fines for failing to provide employee liability information

TUPE for small employers

07/08/2014 by Sarah King Leave a Comment

TUPE 2014, employment solicitor ThrapstonThe last of the changes made by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (SI 2014/16) came into force on 31 July 2014.

The new regulation 13A of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) now provides that employers with fewer than ten employees may directly consult affected employees in cases where there are no existing appropriate representatives and the employer has not invited any affected employees to elect employee representatives.

This is one of the positive changes for small employers who can now consult with their small team of employees rather than having to elect reps.

Tag(s): electing representatives, employment law advice thrapston, employment law solicitor Kettering, exemption for small employers, TUPE representatives

TUPE and Share transfers

23/07/2014 by Sarah King Leave a Comment

settlement agreements oundleIt is common ground that TUPE does not apply to share transfers, or so you thought.  The recent EAT case of Jackson Lloyd Ltd and Mears Group Plc v Smith shows that matters may not be so straight forward.

In this case, the Mears Group rescued the ailing business of Jackson Lloyd and acquired its shares through a subsidiary Mears Ltd. As it was a share transfer the presumption was that TUPE did not apply and no information and consultation took place as required under Regulation 15.  This was challenged and was the basis for how the case ended up before the EAT.

Although the Mears Group intended that Jackson Lloyd should remain a separate subsidiary and brand, upon completion it seized practical control to integrate it into the Group’s way of doing things. It was found that this integration process had triggered a secondary and concurrent TUPE transfer with the Mears Group who controlled and not Mears Ltd who owned the shares being the transferee. There was thus a failure to inform and consult.

The case is perhaps limited by its facts as upon completion the Mears Group announced to the workforce that it was beginning a programme of integration with the potential for staff to move over to the Mears Group. The Group replaced the Board with its nominees, an integration consultant was engaged who reported to the Group, the Chief Executive of Jackson Lloyd was removed by the Group bypassing its Board.

Those advising in commercial situations need to consider whether actions and words could trigger a secondary TUPE transfer.  Attention will need to be given to drafting appropriate warranties and indemnities.  Those acquiring businesses in this way can learn the lessons on not what to do from the case and to consider what is said, to keep the board in place and to consider control of the target.

Tag(s): employment solicitor kettering, employment solicitor thrapston, informing and consulting under TUPE, share transfers, share transfers and TUPE, tupe obligations

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