The Court of Appeal has held that, for there to be an automatic unfair dismissal under TUPE, there does not need to have been a particular transfer or transferee in existence or in contemplation at the time of the dismissal.
The Court of Appeal has held that the transfer from a company in administration does not lead to an exemption from automatic employee transfer under reg.8(7) of TUPE.
In this case, the employment tribunal had to decide the exceptionally difficult issue of whether or not employees who were TUPE transferred to a company that engaged individuals only under a franchise agreement were unfairly dismissed. Unsurprisingly, the panel members were divided on their reasoning and there is expected to be an appeal to the Employment Appeal Tribunal (EAT).
The Employment Appeal Tribunal has confirmed that an agreed variation of an employment contract following a TUPE transfer is effective where the transfer is not the sole or principal reason for the variation.
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.
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