John is an employment Partner at Spencer West as well as being Visiting Professor of Law at Leeds University Business School and serving on the editorial board of ELA Briefing, the journal of the Employment Lawyers Association. He was previously Head of Employment at Pinsent Masons.
John is one of the UK's leading employment lawyers with a national and international reputation. He is the country's leading expert on TUPE and is involved in a wide range of TUPE related matters, including service provision change, mergers and acquisitions, and public sector and third sector transfers.
He has been variously described as “the King of TUPE” and the “TUPE guru”. He is an expert in redundancies and restructuring and also provides advice to senior executives on termination of employment.
He is also:
- the author of Business Transfers and Employee Rights, the leading work on TUPE. First published in 1987, it is a loose-leaf encyclopedia, known affectionately as the “purple book”, and is subscribed to by all major law libraries and law firms and by the Bar
- the author of Redundancy: The Law and Practice, the leading work on redundancy law
- an editor of Harvey on Industrial Relations and Employment Law, commonly known as the practitioner’s “bible” and regularly cited in Court.
A senior executive was placed on garden leave. Were the circumstances such that a TUPE transfer enabled him to object to it and terminate his garden leave?
No, held the High Court in ICAP Management Services Ltd v Berry.
Mr Berry worked for ICAP Management Services Ltd, which was a service company for the ICAP Global Banking Business. He gave notice to leave in order to join a competitor, BGB Services (Holdings) Limited. ICAP put him on garden leave.
During the garden leave, ICAP was the subject of a share sale acquisition by Tullett Prebon plc. Mr Berry notified ICAP that he considered there was a TUPE transfer and purported to object to it under Reg 4(7) of TUPE. That would, by virtue of Reg 4(8), have terminated his contract (and his garden leave) forthwith, releasing him to take up his new employment earlier than would otherwise have been the case. ICAP sued to enforce the garden leave.
The High Court rejected Mr Berry's arguments. TUPE requires a change of employer. A share sale does not involve a change of employer. This was not the kind of exceptional case envisaged in Millam v Print Factory (London) 1991 Ltd [2007] EWCA Civ 322 where, after a share sale, there had been a de facto TUPE transfer because of the supreme control exercised by the new owner. Here it was business as usual. The operating and service companies carried on in the same way as before the share sale. There was, therefore, no TUPE transfer, and nothing to object to. ICAP succeeded in its application for an injunction to enforce the garden leave.
For TUPE aficionados there is (at paras 24-102) an excellent discussion of some key legal issues in the law on transfer of undertakings, including “the concept of the employer”, the legal requirement of change of employer, and the indicia of a TUPE transfer.
Full case decision:
http://www.bailii.org/ew/cases/EWHC/QB/2017/1321.html
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