LOM Management Ltd v Sweeny [2012]
Published on: 08/06/2012
Issues Covered:
Transfer of Undertakings (TUPE)
Article Authors
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Background
A tenant's lease to run a brewery's bar was reassigned to a new tenant. The claimant, employed daughter of the tenant no longer had a job and claimed that a TUPE transfer had automatically transferred her employment from the outgoing tenant to the incoming tenant. The employment tribunal found there was a TUPE transfer and that the claimant had been automatically unfairly dismissed by the new tenant.The Employment Tribunal found that there had been an assignation of a lease of commercial premises from the Claimant‟s father (who employed her) to the Appellants but no other findings relevant for TUPE purposes. The Tribunal made no findings as to whether there was an identifiable economic entity before the assignation of the lease and if so, what it was. Nor did they make any findings as to whether there was a transfer of any such economic entity. The Claimant‟s case was, simply, that since the lease had transferred, there had been a „classic‟ TUPE transfer and the Tribunal agreed with that proposition. On appeal, Tribunal held to have erred in law. Whilst TUPE can apply where there is an assignation of a lease, it requires to be shown that there was an economic entity (i.e. an organised grouping of persons and assets enabling or facilitating the exercise of an economic activity in pursuit of a specific objective) before the assignation which retained its identity afterwards. The only relevant fact found was that there was an assignation of a lease; that was insufficient to establish that TUPE applied. The assignment of a commercial lease from one person to another will not in itself establish a TUPE Transfer.In the assignment of a lease of commercial property, the case of Landsorganisationen i Danmark v Ny Molle Kro [1989] ICR 330 found that TUPE can apply but it is necessary to first show that there was a transfer of a business, an economic entity intrinsically linked to the property.A major problem in this case was that the Claimant did not turn up to the appeal in the EAT in this low value case allowing the case to be won by default (The new tenant had not turned up to the ET hearing either). Otherwise the case would most likely have been returned to a different ET to make the relevant findings of fact. The ET finding of unfair dismissal was overturned. http://bit.ly/LEhIjX
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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 08/06/2012
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