When does a TUPE transfer take place?

16 October 2014

In Housing Maintenance Solutions Ltd (HMS) v McAteer and others, the EAT considered a case where an employer in the business of providing housing maintenance services to its client had gone into insolvent administration on 9 June 2011. On that date, the Respondent in the original ET proceedings (HMS) had said it would accept responsibility for the employment of the Claimant employees and would have work for them as soon as it could pick up the contracts on which they had been previously engaged. It was hoped that this would be no later than 1 July 2011.

However, from 9 June 2011 HMS commenced a consultation process with the affected employees, engaged four of the managers as soon as they were ready to take them (15 June) and engaged the cleaners only five days later. By 1 July HMS had taken on all but two of the remaining employees.

The employees resumed working for the same client, and their activities were essentially and fundamentally the same. The activities were suspended for a time post 9 June 2011, but only for so long as was practically required by and desirable to HMS.

The original Employment Tribunal concluded that the TUPE transfer had taken place on 9 June 2011. However, the EAT disagreed, stating that the transfer must take place on the date when the transferee takes over control of the business. This date would then, automatically under TUPE, be the date on which the employees’ contracts transferred. Unfortunately the EAT did not confirm what date it considered the transfer to have taken place, if not 9 June 2011, but instead remitted the case to a different judge to determine that issue.

Points to note –

The EAT asked the Tribunal to reconsider the evidence in this case to decide on what date the transfer of the business took place. The date on which HMS re-assured the employees that there would be work for them in the future (9 June) might not be the appropriate date.

The EAT also reminded the Tribunal that, under TUPE reg. 3(6)(a), it was possible for it to decide that the transfer had been effected by a series of two or more transactions.        

This article is part of the UK Employment Law Update for October 2014