TUPE
Ceri Hughes, David Parry, and Carly Mather, associates at Addleshaw Goddard, detail the latest rulings.
This week's case of the week, provided by Thomas Eggar LLP, covers constructive dismissal following a TUPE transfer.
This case is a good example of a key issue in TUPE claims: whether or not an employee was assigned to the transferred undertaking.
Helen Samuel, associate solicitor and Anna Bridges, associate solicitor, at Addleshaw Goddard, detail the latest rulings.
In Parkwood Leisure Ltd v Alemo-Herron and others [2010] EWCA Civ 24 CA, the Court of Appeal held that, where the transfer of an undertaking occurs, and the transferring employees' contracts contain a clause referring to a collective agreement between the transferor and the relevant union, the transferee is not obliged to recognise wage increases agreed by the transferor and the union after the transfer has occurred resulting from negotiations to which the transferee was not a party.
In Unison v Somerset County Council and others EAT/0043/09, the EAT held that the employees "affected by" a TUPE transfer for the purposes of consultation with employee representatives were those who would or might be transferred, those whose job is jeopardised by the proposed transfer, and those with internal job applications pending. The definition did not extend to those who might in the future apply for a vacancy in the part of the undertaking transferred.
In Royal Mail Group Ltd v Communication Workers Union [2009] EWCA Civ 1045 CA, the Court of Appeal held that an employer must inform representatives of employees who may be affected by a TUPE transfer of its considered and genuine view as to the legal implications of the proposed transfer. However, reg.13(2)(b) of the TUPE Regulations 2006 does not impose strict liability on the employer as to the accuracy of that information. Therefore the employer will not be in breach if the information that it gives reflects a genuine but mistaken belief as to the legal implications.
In OCS Group UK Limited v Jones and another EAT/0038/09, the EAT held that a tribunal had not erred in law in deciding that the activities carried out after a catering contract was taken over by a new contractor were substantially different from the activities carried out by the previous contractor, so there could be no TUPE transfer. The extent to which the activities have changed is a question of fact for the tribunal, and the tribunal in this case had been entitled to reach the conclusion it had.
In Tapere v South London and Maudsley NHS Trust EAT/0410/08, the EAT held that, in requiring a transferred employee to move to a location outside the scope of the mobility clause in her original contract of employment with the transferor, the transferee had acted in fundamental breach of contract. The employee's subsequent resignation therefore amounted to a constructive dismissal. Further, the transferee's attempt to move her place of work amounted to a substantial change in her working conditions to her material detriment. She was, therefore, also entitled to be treated as having been dismissed under reg.4(9) of the TUPE Regulations.
In Gutridge and others v Sodexo Ltd and another [2009] IRLR 721 CA, the Court of Appeal held that equal pay claims in respect of employment prior to a TUPE transfer must be brought against the transferee within six months of the transfer. The six-month time limit for claims in respect of the post-transfer period does not start to run until the claimant's employment with the transferee ends.
Employment law cases: HR and legal information and guidance relating to TUPE.