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Northern Ireland
Gabriel v Peninsula Business Services Ltd & Anor [2012] UKEAT 0190_11_2302
Published on: 20/04/2012
Issues Covered:
Transfer of Undertakings (TUPE)
Article Authors The main content of this article was provided by the following authors.
Background This Employment Appeal‟s Tribunal concerned the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) to a business transfer where the transferee (the acquiring company) hadn‟t specified that TUPE applies to the transfer. The critical issue was whether the Employment Judge was entitled to find that the claimant‟s employment transferred from Frist Respondent to Second Respondent without her knowledge or consent.On 26 February 2009 an email was sent to the First Respondent's employees who were working for QDOS Taxwise, advising them that QDOS Taxwise Ltd had changed its name to Taxwise Services Ltd and that as from 1 April 2009 the trade and assets of the Taxwise business of the First Respondent would transfer to the Second Respondent, and that their employment would transfer to the Second Respondent with continuity of employment and on the same terms and conditions as with the First Respondent. The Judge found that the Claimant did not receive that email and was therefore "unaware" that her employment was to be transferred to the Second Respondent on 1 April 2009. She remained on her existing terms and conditions and never received any notification that the identity of her employer had changed. Although she subsequently received pay slips and a P60 indicating she was not employed by the First Respondent, she received her proper pay and was not concerned to check the identity of her employer.If TUPE applies to the transfer of an employee‟s contract of employment from a transferor business to a transferee business then under TUPE the transferee assumes all assets and liabilities of the transferring business. This includes the contract of employment of employees of the transferor. However, the transferor must inform its employees that TUPE applies to the transfer of their employment. If the transferor fails to do so then TUPE will not necessarily apply to the transfer and the employee‟s contract of employment may not transfer automatically to the transferee.The Employment Appeal Tribunal considered that TUPE did not apply in this instance. The fallback position was therefore to consider the binding decision of the House of Lords in Nokes v Doncaster Amalgamated Colleries Ltd. In Nokes the House of Lords considered that the contract of employment of an employee cannot be automatically transferred to another employer without his or her consent. The Claimant had not consented to the transfer and her employment therefore remained with Peninsula Business Services.http://bit.ly/HOqXRc

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 20/04/2012
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