TUPE
This week's case of the week, provided by DLA Piper, covers protective awards under TUPE.
The Employment Appeal Tribunal has held that an employer's compliance with the TUPE legislation to preserve existing contractual terms and conditions that results in a disparity in pay can amount to a genuine material factor that may provide a defence to an equal pay claim.
The Supreme Court has referred to the European Court of Justice the question of whether or not the TUPE Regulations should be given a "dynamic" interpretation, in the context of a dispute over a transferee's failure to honour the terms of a pay increase made under a collective agreement that was incorporated into the contracts of employment before the transfer.
The Employment Appeal Tribunal has held that it is the transferee, rather than the Secretary of State, that is liable to pay the unfair dismissal basic award and notice of an employee who is dismissed after a "pre-pack" administration and TUPE transfer of the business as a going concern.
Claire Benson is managing associate and Helen Corbett, Sinead Jones, Helen Ward and Tori O'Neil are associates at Addleshaw Goddard LLP. They round up the latest rulings.
The Employment Appeal Tribunal has held that, for a dismissal to be automatically unfair under TUPE, it is not necessary for the transferor to have identified an actual prospective transferee at the time of the dismissal.
The Employment Appeal Tribunal has held that the employment tribunal was wrong to find that the absence of a system of moderating two sets of redundancy scores following a TUPE transfer rendered the selection process unfair.
The Employment Appeal Tribunal has held that the exemption from automatic employee transfer under reg.8(7) of TUPE cannot apply to a transfer from an administration.
In Todd v Strain and others [2011] IRLR 11 EAT, the EAT held that the duty to give employee representatives information about a forthcoming transfer applies even where there are no measures being proposed that give rise to a duty to consult the representatives. Informing individual employees rather than representatives did not amount to compliance with the information requirements, but should have led the tribunal to award less than the maximum compensation of 13 weeks' pay.
In Wood v Caledon Social Club Ltd and another EAT/0528/09, the EAT held that a TUPE transfer arose even though the business had temporarily ceased operating at the time of the transfer.
Employment law cases: HR and legal information and guidance relating to TUPE.