Determining the date of TUPE transfers is a complex scenario

In some cases, identifying the specific date of TUPE transfers is not easy but is very important. The recent case of Rajput v Commerzbank AG and Societe Generale (London) demonstrates this.

Ms Rajput worked for Commerzbank as a Senior Compliance Officer in their Equity Markets and Commodities (EMC) business. In 2020, she brought a claim alleging victimisation and discrimination, resulting from her dismissal on 31 March 2020.

In November 2018, Commerzbank entered into an agreement to sell its EMC business to Societe Generale. This business contained three parts, with each part having some employees in London but others elsewhere in the world. The sale took place in stages, with the majority of the business having transferred by September 2019, but the Flow Trading (FT) business (based mainly in Germany) transferred in 11 batches between October 2019 and May 2020.

It was agreed that the sale of the EMC business was a relevant transfer under TUPE, but the date of the transfer became very important in the context of Ms Rajput’s case. Commerzbank claimed that the transfer date was 1 October 2019 and she was therefore no longer an employee of Commerzbank when dismissed in March 2020. Ms Rajput claimed that the transfer occurred on 10 May 2020 when the entire transaction had concluded.

The Employment Tribunal found that the TUPE transfer happened on 1 October 2019 because the bulk of two of the three parts of the EMC business had happened by then and that the FT business was not relevant to the issue as it was a part of the business based outside of the UK.Ms Rajput appealed to the EAT. Issues of interest in the EAT’s decision were:

• It is clear from the TUPE Regulations that TUPE applies to “a business situated immediately before the transfer in the United Kingdom”. It had been agreed here that the EMC business as a whole was “a business situated in the UK” and in determining the date of the transfer, the Tribunal should have considered the whole of that business and should not have limited its considerations to those elements of the business that were physically located in the UK.
• The Tribunal had considered when the “essential nature” of the EMC business transferred from Commerzbank to Societe Generale. In any case where there is a relevant transfer as a result of series of transactions, it was the role of the Tribunal to identify the point in time at which responsibility for carrying on the business transfers from transferor to transferee. It has to be a point in time and cannot be a period of time.
• The EAT decided to remit the case back to the Tribunal for it to decide the date of the TUPE transfer, but taking into account (rather than ignoring) the dates on which the FT business transferred.

It is not uncommon for businesses or service contracts to transfer over a period of time and the case is a useful reminder of how the Tribunal should operate in such cases to identify the particular date on which the relevant transfer is deemed to have occurred.