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Transfer of undertakings: No conflict between ERA and TUPE on continuity

This report relates to 1 case(s)

  • expand disabled

    Castro v D36 Ltd [2004] All ER (D) 287 (Jul) EAT (0 other reports)

Key points

In D36 Ltd v Castro, the EAT holds:

  • There is no conflict between s.218(2) of the Employment Rights Act 1996 (the "ERA") and reg. 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE"). Both provisions operate to preserve continuity of employment.
  • There was no error of law in concluding that TUPE did preserve continuity of employment for the purposes of bringing an unfair dismissal claim under the ERA. The EAT further stated obiterthat TUPE must be interpreted consistently with the Business Transfers Directive and ECJ case law on the equivalent provisions of the Directive.
  • The tribunal's short reasons for its decision and failure to make findings of fact or give sufficient explanations as to how it awarded compensation amounted to an error of law.
  • The tribunal's failure to exercise its discretion to award costs for unreasonable conduct correctly, by not identifying the facts on which its decision was based and setting out its reasoning, also amounted to an error in law.