Lewis Silkin Seminar - What's Trending in TUPE - 8th March 2012


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This is the case study presentation from Lewis Silkin's recent "Warranties and Indemnities" seminar on the 8th March 2012 by Julian Parry and Lucy Lewis. If you would like more information please get in touch.


Julian Parry

Lucy Lewis

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Lewis Silkin Seminar - What's Trending in TUPE - 8th March 2012

  1. 1. TUPE case update“What’s trending in TUPE” 8 March 2012
  2. 2. TUPE trends Decline of transfers under SPC provisions Easier for th t E i f the transferee to f t claim SPC doesn’t apply Rise of transfers from companies in administration Harder for the transferee to claim TUPE doesn’t apply
  3. 3. Enterprise Managed Services v Connect Up(EAT) Transferor: EMS • No service cover for curriculum matters (15% change)• School IT • Managed service support for for curriculum/ curriculum and administration • Only win 60% of administrative schools (40% of systems schools divided • Software between 5 other Client: Leeds Cli t L d maintenance suppliers) City Council support Transferee: Connect U C t Up
  4. 4. EAT decision and guidance Decision: No SPC 15% change meant not “fundamentally or essentially the same” Services spread amongst 6 providers – division/fragmentation Guidance: What “activities” are being carried out by transferor? Are those activities essentially the same after the transfer? If yes, is there an “organised grouping If not, no transfer of employees ? employees”?
  5. 5. Eddie Stobart v Moreman & Others (EAT) Transferor: Eddie Stobart • Centralised meat • Argued no• Warehousing, p packers organised so g organised packing and ki d that night shift pack grouping of i f distribution for one client, and day employees shift pack for another client (Vion) Transferee: Client: Vion FJG Logistics
  6. 6. EAT decision No organised group of employees f In order to have organised group, employees must be organised “in some sense by reference to the client in in question” Which implies: Without deliberate planning or intent, Employees must be deliberately there will be no “organised grouping” organised into an identifiable client even if an employee mostly works on grouping tasks f th li t t k for the client
  7. 7. EAT guidance Only once it has been found that there is an organised group of employees do you need consider if the employee is “assigned” g When assessing assignment, consider:Time spent by the Value given by Employee’s Costs allocation employee employee contract within transferor
  8. 8. Key2Law v De’Antiquis (CoA)(OGT Limited v Barke in EAT)Transferor: DrummondsKirkwood LLP Transferee: Key(2)(Solicitors) in Lawadministration • Made Ms De’Antiquis • Administrators entered redundant days before into “management entering administration contract” for the office in which Ms De’Antiquis De Antiquis worked
  9. 9. Legal conundrum Is administration entered into with a view to liquidation of the assets? YES, no TUPE transfer NO, TUPE applies with some amendments
  10. 10. Court of Appeal Decision Administration not entered into with a view to liquidation of the assets. TUPE will always apply (with some amendments) to companies in administration. EAT decision in OTG v Barke applied. Companies in administration cannot fall outside TUPE EAT decision in Oakland v Wellswood overruled
  11. 11. Spaceright Europe v Baillavoine and another(CoA)Transferor: Ultralon Transferee:Holdings (in Spaceright Europeadministration) Limited • Dismiss Mr Baillavoine • Enter into “management before a transferee was contract” with Ultralon identified
  12. 12. Legal conundrum Is a pre-transfer dismissal where the transferee is not identified at the time “connected to the transfer”? No, the dismissal is not automatically unfair Yes, the dismissal will be automatically unfair unless t ti ll f i l there is an ETO reason
  13. 13. Court of Appeal Decision A pre-transfer d s ssa ca be p e a s e dismissal can connected with the transfer even if the particular transferee if not identified. identified EAT decision in Harrison Bowden v Bowden applied. Dismissals by companies in administration where no transferee is identified can be automatically unfair unless there is an ETO reason. EAT decision in Ib T di v W lt d i i i Ibex Trading Walton overruled
  14. 14. Court of Appeal Decision There must be an intention to change the workforce and continue to conduct business for an ETO ETO. EAT decision in Berriman v Delabole Slate applied. No N ETO reason if dismissal i t di i l is to slim down the business to make it more attractive for sale.
  15. 15. And finally....... The TUPE award goes to:
  16. 16. Pannu v Geo W King Ltd and others (EAT)Geo W King Ltd argued that assembly of car parts on factory assembly line was a service performed for a client Although the employees wereGeo W King was producing car providing a service to their parts employer, the contract with the client was for the supply of parts TUPE did not apply - (3(3)(b)) exclusion re supply of goods
  17. 17. Thank you