TUPE or not TUPE? That is the question

Background

The employees, in this case, were employed by a subcontractor. They had been laid off as a result of a commercial dispute with the main contractor shortly before the expiry of the main contract and the transfer of the services to a new contractor. The subcontract was terminated by consent 12 days before the new contract was due to commence.

Both the main contractor and the new contractor refused to take on the subcontractor’s employees arguing that TUPE did not apply.

The employees brought a tribunal claim but lost. The tribunal concluded that there had been no relevant transfer, alternatively that the employees were not employed ‘immediately before’ any such transfer and, therefore, TUPE did not apply.

The employees appealed. Allowing the appeal, the Employment Appeal Tribunal said that the tribunal’s conclusions were flawed. The temporary cessation of work activities, it said, was one factor amongst many others and should not have been treated as determinative.

The case has been remitted to the same tribunal to reconsider the issues.

Comment

The suspension of activity shortly before a change of service provider which was the key feature of this case is by no means unusual. The judgment in this case makes clear that such intermissions require careful analysis, because they may well form part of a chain of events which gives rise to a relevant transfer.

Mustafa & Another v Trek Highways Services Ltd & Others UKEAT/0063/15

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