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Coutinho v Vision Information Services (UK) Ltd and another
Employment – Dismissal – Redundancy – Employee made redundant – Transfer of employer company to second company – Employee alleging unfair dismissal, discrimination and receiving compensation – Second claim alleging victimisation and further discrimination – Employee’s claims struck out – Whether tribunal erring – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794 , reg 4(2).
Employment – Dismissal. In a case where the employee had been dismissed, and where subsequently the business of his employer was transferred to D Ltd under the Transfer of Undertakings(Protection of Employment) Regulations 1981, SI 1981/1794 (TUPE), the decision of the employment tribunal to strike out the employee’s claims of victimisation and discrimination against D Ltd had been correct. If the material duty arose after the transfer, the transferee could not be liable by virtue of reg 4(2) of TUPE. It would place an impossible burden on the transferee. Victimisation occurred when the claimant suffered the detriment. What was taken over as a result of TUPE were existing liabilities. If victimisation occurred after that, it was not a transferred obligation that had been broken.
CAB Automotive Ltd v Blake and others
Employment – Continuity – Transfer of trade, business or undertaking – Employment tribunal finding employees unfairly dismissed by reason of transfer – Whether tribunal erring – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794, rr 8(1), (2).
A determination of a claim under r 8(1) of the Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794 required the identification of the reason for dismissal. In the instant case, the tribunal had failed properly to address that question. In concluding that the claim had been made out on the basis that the dismissals had been ‘connected with a transfer,’ it had erred in law. Moreover, it was apparent from the tribunal’s reasoning that it had erroneously thought that rr 8(1) and (2) of the regulations were alternatives. Accordingly, the appeal against its conclusion was allowed.
Onwuka v Spherion Technology (UK) Ltd and others
Employment – Transfer of trade, business or undertaking – Continuity – Employee employed by first respondent – First respondent transferring part of business to third respondent – Employee subsequently presenting claim before employment tribunal – Tribunal dismissing employee’s claim that his employment transferred to third respondent – Whether tribunal erring – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794.
Where the employee appealed against the employment tribunal’s conclusion that this employment had not been transferred to the second and third respondents, pursuant to the Transfer ofUndertakings (Protection of Employment) Regulations 1981, SI 1981/1794, on the basis, inter alia, that the tribunal’s conclusion was perverse, the Employment Appeal Tribunal held that that conclusion had been properly open to the tribunal on the evidence before it. Accordingly, the employee’s appeal was dismissed.
Adult Learning Inspectorate and others v Beloff
Employment – Continuity – Transfer of trade, business or undertaking – Redundancy – Requirement to consult – Exclusion of persons in Crown employment from statutory redundancy procedure – Whether employment with inspectorate Crown employment – Trade Union and Labour Relations Act 1992, s 273.
The common purpose was to ensure that employees’ representatives were given information and could undertake meaningful consultation about the effect of the relevant change on those whom they represented. Why should an employee representative be entitled to complain about the absence of consultation in respect of plans that involved redundancies, when he could not complain about such a lapse in respect of the same plans that involved a relevant transfer of an undertaking? On the true construction of s 273 of the the Trade Union and Labour Relations (Consolidation) Act 1992, which excluded Crown employees from the redundancy procedure in that Act, the focus was not on the issue of Crown immunity, which was not mentioned in that provision, and which was different from the concept of ‘Crown employment’ for the purposes of that provision. Notwithstanding that, pursuant to para 16 of Sch 6 to the Learning Skills Act 2000, the first respondent was not to be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown, the appellant’s employment with the first respondent was under and for the purposes of the first respondent, which exercised functions on behalf of the department for education and skills, or it was for the purposes of the department for education and skills, such that it fell within the exclusion in s 273 of the 1992 Act. Accordingly, the employment tribunal had no jurisdiction to hear the appellant’s complaints concerning a lack of consultation concerning a transfer of functions and redundancies.
GMB and another v Holis Metal Industries Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Material transfer of undertaking to Israeli company – Whether applicable Regulations having extra territorial jurisdiction –Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, regs 3, 13.
Regulation 3(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, made it clear that an international element fell within the Regulations’ ambit and the provisions for service were clearly aimed at the modern outsourcing of service provision, particularly call centres, whether inside or outside the European Union. The combined effect of the wording of the Regulation and EC Council Directive 2001/23 (on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings,businesses or parts of undertakings or businesses), which the Regulations implemented, together with the weight of European jurisprudence and academic/practitioner commentary led to the conclusion that the Regulation had the potential to apply to a transfer from the United Kingdom to a non-EU entity that on the transfer of the undertaking did not remain in the jurisdiction.
Power v Regent Security Services Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Claimant employee agreeing variation to contract of employment by reason of transfer – Claimant seeking to rely on varied terms – Employment tribunal finding variation invalid – Employment Appeal Tribunal finding that variation valid – Whether tribunal erring in law – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794.
Where the defendant employer sought to prevent the claimant employee relying upon a variation to the terms of his contract of employment that had occurred by reason of the transfer of a business to the defendant to which the Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794 (TUPE) applied, the Employment Appeal Tribunal had been correct in finding that a consensual variation in the contractual retirement age was not void, and that there was no public policy that operated to prevent an employee from relying upon a variation to his contract of employment. An employee’s rights on a transfer were not being safeguarded if he or she was prevented from taking the benefit of a term that was agreed with a transferee on or after the transfer.
New ISG Ltd v Vernon and others
Employment – Continuity – Transfer of trade, business or undertaking – Employer purporting to transfer defendants’ contracts of employment to claimant as part of transfer of undertaking – Defendants objecting to transfer – Claimant subsequently seeking to enforce restrictive covenants against defendants – Whether employer transferring defendants’ employment to claimant – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, r 4(7).
In a case where an employee did not know the identity of a transferee before the date of the transfer of the undertaking, the fundamental principle that an employee should be free to choose his employer required that r 4(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 be construed purposively.
Jackson v Computershare Investor services plc
Employment – Continuity – Transfer of trade, business or undertaking – Enhanced severance pay – Employee starting work with first company in 1999 – Undertaking transferred to second company in 2004 – Second company having enhanced severance pay scheme – Scheme in two parts, applying to employees joining company before and after 1 March 2002 – Employee being made redundant in 2005 – Whether employee having joined company before or after 1 March 2002 for purposes of enhanced severance pay scheme – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794, reg 5(1).
The TUPE and acquired rights provisions were aimed at preventing the employee in an undertaking being prejudiced as a result of the transfer of the undertaking. It was not, however, their objective to confer additional rights on the employee or to improve the situation of the employee. Therefore, the true effect of the deeming provision in reg 5(1) was not to give a transferred employee access to employment benefits other than those to which the employee had been entitled before the transfer of the undertaking.
Redcar and Cleveland Borough Council v Bainbridge and others
Employment – Equality of treatment between men and women – Pay – Male employees benefiting from productivity linked bonuses – Whether pay disparity justifiable – Whether employment tribunal erring – Equal Pay Act 1970, ss 1(2)(b) and (c) and 1(5).
The appeal would be dismissed.
A woman could base a ‘rated as equivalent’ claim on comparison with a man who had been placed in a lower grade by the job evaluation study but who in fact received more pay. Section 1(5) of the 1970 Act would be ‘moulded’ to read as follows: ‘A woman is to be regarded as employed on work rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value or her job has been given a higher value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value, or her job would have been given a higher value, but for the evaluation being made on a system setting different values for men and women on the same demand under any heading.’
Claims under s 1(2)(b) and s 1(2)(c) were two different and mutually exclusive ways of securing equal pay for work of equal value. The defendant’s submission that a narrow construction of s 1(2)(b) was justifiable, because a claimant who fell outside its terms may nevertheless still advance an equal value claim under s 1(2)(c), could not be accepted. It was well known that equal value claims which could not be based on an existing job evaluation study could be very expensive and time consuming. Section 1(2)(b) did not stand alone, it fell to be read with s 1(5), and once the latter section had been suitably interpreted, s 1(2)(b) required no additional words.
The analysis and comments of the EAT that s 1(2)(b) and (c) were intended to implement the same Community principle of equal pay for equal work or work of equal value had been correct.
Autologic Holdings Plc v Inland Revenue Commissioners  4 All ER 1141 applied. Murphy v Bord Telecom Eireann  IRLR 267, Adeneler v Ellinikos Organismos Gelatos  All ER (EC) 82considered.
Decision of Employment Appeal Tribunal  All ER (D) 197 (Nov) affirmed.
Re Leeds United Association Football Club Ltd Fleming and others v Healy and others
Company – Administration – Wrongful dismissal payments – Liability for damages for wrongful dismissal – Whether payable in priority to expenses of administration – Whether arising under contract of employment – Whether wages or salary – Insolvency Act 1986, Sch B1, para 99(4), (5), (6).
The court ruled:
If a payment was not referable to an obligation on the employee under a subsisting contract of employment to render his services, it did not fall within the ordinary meaning of the word ‘wages’. It followed that if an employer terminated the employment (whether lawfully or not), any payment in respect of the period after the date of such termination was not a payment of wages in the ordinary meaning of that word.
In such a case, the payment would be a payment by the employer on account of the employee’s claim for damages for breach of contract. Evidently the damages payable to the employee would not be wages, and, accordingly, it followed that if, in the instant case, the administrators were to adopt the respondents’ contracts subsequently to dismiss them, the position was no different. In those circumstances, any such liability would not take priority pursuant to paras 99(4)-(6) of Sch B1 to the 1986 Act.
Accordingly, the declarations sought by the administrators would be granted.
Delaney v Staples  1 All ER 944 and Re Huddersfield Fine Worsteds Ltd and another (in administration); Krasner v McMath; and other appeals  4 All ER 886 considered.
Slater and others v Secretary of State for Trade and Industry
Employment – Continuity – Transfer of trade, business or undertaking – Non payment of wages and holiday pay – Insolvency proceedings – Insolvency practitioner – Whether insolvency proceedings commencing prior to date of transfer – Whether insolvency practitioner appointed at time of proceedings – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, regs 8(6),(7).
The appeal would be allowed.
Pursuant to reg 8(6) or reg (7) the transfer would have to take place after the insolvency proceedings. Under reg 8(6) the insolvency proceedings would have to be opened in relation to the transferor prior to the transfer. The same result would be achieved with respect to reg 8(7). The bankruptcy proceedings or any analogous insolvency proceedings would have to be instituted prior to the transfer.
In the instant case, there had been no insolvency proceedings in place when the business had been transferred and even if there had been, they had not been under the supervision of the insolvency practitioner. Even though the company was under the supervision of a liquidator at the time of the transfer, who was qualified to act as insolvency practitioner, he had not been acting in that capacity at the date of transfer. Moreover, assuming that the transfer had taken place on 27 July, that date would have been before the proceedings had been under the supervision of an insolvency practitioner acting in that capacity.
Accordingly, liability for the debts of the employees would not lie with the Secretary of State.
Transport & General Workers Union v Swissport (UK) Ltd (in administration) and another
Employment – Transfer of undertakings – Continuity of employment – First respondent providing ground handling services to second respondent – First respondent entering into administration – Second respondent engaging first respondent’s employees and equipment – Whether there being transfer of stable economic entity – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794.
The appeal would be allowed.
(1) In determining the question of whether there had been a transfer of a stable economic entity, the employment tribunal was bound to consider whether what might have been an inchoate economic entity prior to transfer, had become an actual stable economic entity on transfer.
In the instant case, the tribunal had failed to address that question, and, accordingly, its approach had been flawed.
(2) Properly construed, the regulations were not to read so as to exclude cases of transfers occurring in insolvency situations, even where, as in the instant case, the administrators had neither carried on the business in question nor transferred any of it as a going concern.
Accordingly, the mater would be remitted to a differently constituted tribunal for fresh consideration.
Fairhurst Ward Abbotts Ltd v Botes Building Ltd and others  IRLR 304 applied. Oakley Inc v Animal Ltd and others  IP & T 251 considered.