TUPE

New and updated

• Date:

  1 June 2010

  Type:

  Employment law cases

  Case round-up

  Helen Samuel, associate solicitor and Anna Bridges, associate solicitor, at Addleshaw Goddard, detail the latest rulings.

• Date:

  13 April 2010

  Type:

  Employment law cases

  TUPE: Transferee not bound by transferor's post-transfer pay agreement

  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.

• Date:

  10 March 2010

  Type:

  Employment law cases

  TUPE: EAT defines "affected employees" to be consulted on a TUPE transfer

  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.

• Date:

  13 January 2010

  Type:

  Employment law cases

  TUPE: Incorrect information reflecting mistaken belief about legal position did not breach Regulations

  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.

• Date:

  14 December 2009

  Type:

  Employment law cases

  TUPE: Activities had substantially changed to prevent service provision change TUPE transfer

  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.

• Date:

  11 November 2009

  Type:

  Employment law cases

  TUPE: Requirement to move to location outside scope of mobility clause in original contract was fundamental breach of contract

  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.

• Date:

  30 September 2009

  Type:

  Employment law cases

  Equal pay: Court of Appeal rules on time limits for equal pay claims in context of TUPE transfers

  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.

• Date:

  8 September 2009

  Type:

  Employment law cases

  TUPE: Service provision change within meaning of TUPE Regulations 2006 had occurred

  In Metropolitan Resources Ltd v Churchill Dulwich Ltd (in liquidation) and others [2009] IRLR 700 EAT, the EAT held that, when determining whether or not there has been a service provision change within the meaning of the TUPE Regulations 2006, tribunals should consider if the activities carried out by the alleged transferee are essentially or fundamentally the same as those carried out by the alleged transferor.

• Date:

  19 May 2009

  Type:

  Employment law cases

  Disability discrimination: Time limit where employee relies on employer's long-term failure to make reasonable adjustments

  In Matuszowicz v Kingston Upon Hull City Council [2009] IRLR 288 CA, the Court of Appeal held that, where an employee relies on the employer's alleged continuing omission to make a reasonable adjustment, in the absence of evidence as to the date of the employer's decision, the time limit for instituting tribunal proceedings runs from the end of the period during which the employer might reasonably have been expected to effect the adjustment, unless there is an earlier inconsistent act.

• Date:

  27 April 2009

  Type:

  Employment law cases

  Contracts of employment: Tribunal erred in not determining to which aspect of a bonus scheme the employer's discretion attached

  In Small and others v Boots Co and another [2009] All ER (D) 200 (Jan) EAT, the EAT held that the fact that the employer had stated that a bonus was discretionary did not necessarily mean that it had no contractual effect. The employer's discretion could relate to: whether or not to operate a bonus system at all; whether or not to award a bonus in a given year; or the amount of bonus to be awarded.