TUPE
In (1) Wilson and others v St Helens Borough Council (2) Meade and another v British Fuels Ltd, the Court of Appeal considers the position under the Transfer of Undertakings Regulations where employees' contracts of employment are terminated on a relevant transfer and they accept employment with the transferee on less favourable terms and conditions.
The EC Business Transfers Directive does not apply to a change in the contractor providing contracted-out services, unless there is a concomitant transfer of significant tangible or intangible assets from the existing contractor to the new contractor, or the new contractor takes over a major part of the workforce (in terms of the numbers and skills of employees) assigned to the performance of the contract by its predecessor, rules the European Court of Justice in Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice and another.
An industrial tribunal was entitled to find that an employee objected to transferring to a new employer and informed his employer of that objection, holds the EAT in Hay v George Hanson (Building Contractors) Ltd.
In Wilson and others v St Helens Borough Council, the EAT holds that the Transfer of Undertakings Regulations prohibit even a consensual variation in the terms and conditions of employment of employees transferred where the transfer of the undertaking is the reason for the variation
Where the whole of an employer's business is transferred, all of its employees will normally be "assigned" to that business for the purposes of the Transfer of Undertakings Regulations, holds the EAT in Duncan Web Offset (Maidstone) Ltd v Cooper and others.
An industrial tribunal was entitled to find that fundamental changes in the nature of the business carried on in a hospital shop after it was contracted-out to a private operator had "destroyed" any identity between the latter business and its predecessor, holds the EAT in Mathieson and another v United News Shops Ltd.
The "Business Transfers" Directive covers a situation in which an employer contracts-out cleaning operations which were previously performed in-house, even though prior to the transfer the work was being done by only one employee, rules the European Court of Justice in Schmidt v Spar-und Leihkasse der früheren Ämter Bordesholm, Kiel und Cronshagen.
In Landsorganisationen i Danmark v NY Molle Kro [1989] IRLR 37 ECJ, the European Court of Justice held that the Acquired Rights Directive (EEC Directive 77/187) is applicable where, following a legal transfer or merger, there is a change in the legal or natural person who is responsible for carrying on the business and who by virtue of that fact incurs the obligations of an employer vis-a-vis employees of the undertaking, regardless of whether or not ownership of the undertaking is transferred.
In Institution of Professional Civil Servants and others v Secretary of State for Defence the High Court rejects a complaint by various trade unions that the Secretary of State had not Informed and consulted them about a proposed transfer of two dockyards to commercial management, as required by s.1 of the Dockyard Services Act 1986.
In Spijkers v Gebroeders Benedik Abbatoir CV 24/85 [1986] ECR 1119 ECJ, the European Court of Justice ruled that Article 1(1) of the Acquired Rights Directive must be interpreted to the effect that the expression 'transfer of an undertaking, business or part of a business to another employer' envisages the case in which the business in question retains its identity.
Employment law cases: HR and legal information and guidance relating to TUPE.