Coronavirus: Employer’s resource centre — live guidance available here

When does an Employee transfer under TUPE?!

Employment Law & HR
BG Purple

You’d think we’d know the answer by now! Nonetheless, another month, another case giving us greater clarification on the minefield that is the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

In Housing Maintenance Solutions Ltd v McAteer and others UKEAT/0440/13 the Employment Appeals Tribunal was asked to chip away at the age old question: when does a relevant transfer occur? Specifically, the EAT was asked to determine whether a transfer occurs when the transferee assumes responsibility for the employees or when the transferee starts carrying out a transferred activity.

Neither, concluded the EAT. It is, rather, the date when responsibility for the relevant business transfers from one entity to another. The EAT noted that it was a matter of law when contracts of employment transfer under TUPE and the parties intentions or beliefs as to the employment contracts could not change that. 

The facts of the case were such that the Appellant, Housing Maintenance Solutions Limited (HMS), a wholly owned subsidiary of a housing association, LHM, took over the provision of repair and maintenance services to LHM on 1 July 2011. Prior to this, LHM had utilised the services of an external organisation, Kinetic, for their repair and maintenance needs. On 9 June 2011 LHM had terminated their agreement with Kinetic with immediate effect due to poor performance. On 14 June Kinetic advised their employees that their employment had been terminated on 9 June due to redundancy. 

At this date neither LHM nor HMS had the ability to provide this repair and maintenance service and between 9 June and 1 July LHM engaged approved contractors to provide this work.  However from 9 June HMS engaged in consultation with Kinetic staff to advise them that they would employ them in the near future and additionally engaged 4 senior Kinetic employees from 15 June to assist with the transition. There was no real debate that the services provided by Kinetic and HMS were the same and the Employment Tribunal Concluded that there had been a transfer under TUPE. The EAT remitted the case to the Employment Tribunal to determine when the transfer had taken place in line with the above.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division