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OCS Group v Jones and another
Continuity – Transfer of trade, business or undertaking – Employees being employed under catering contract – Contract losing money – Employer failing to renegotiate contract – Contract taken over by another company – Judge finding employee’s contracts did not transfer – Whether tribunal erring –Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 2006/246, s 3(1)(b).
Employment – Continuity. The Employment Appeal Tribunal held that the employment tribunal had adopted the proper approach and had not erred in holding that the employees’ contracts had not transferred under the service provision changes contained in regulation 3(1)(b) of the Transfer of Undertakings(Protection of Employment) Regulations 1981, SI 2006/246 (TUPE).
Jonas and others v Enterprise Liverpool Ltd
Employment tribunal – Procedure – Pleading – Application for permission to amend – Claim arising out of transfer of undertakings – Employees put claims in own name – Employees applying to substitute trade union as claimant – Primary time limits expiring prior to lodging of amended pleading – Exercise of discretion – Whether permission to amend should be granted.
Employment tribunal – Procedure. Employment Appeal Tribunal: The judge had been right to allow an amendment to substitute a union for the employees in circumstances where they had made that application out of time.
Churchill Dulwich Ltd (in liquidation) and others v Metropolitan Resources Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Home office contract with first respondent previous employer ceasing – New contract agreed with appellant alleged employer – Second defendant employees presenting themselves for work at alleged employer – Alleged employer sending employees home – Employees bringing proceedings against alleged employers – Employment judge finding that relevant transfer had occurred and alleged employer the correct respondent to employees’ claim – Whether employment judge erring – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, reg 3.
Employment – Continuity. Employment Appeal Tribunal: The employment tribunal had correctly approached the issue of whether there had been a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, and had been entitled to conclude that, in the circumstances of the instant case, there had been such a transfer.
Gutridge and others v Sodexo Ltd and another
Employment – Equality of treatment of men and women – Equality clause – Employees transferred to transferee – Employees claiming equal pay rights five years later relying on comparators who had not been transferred to the transferee – Transferee contending claims out of time – Employment tribunal finding employees entitled to bring claims – Employment Appeal Tribunal finding employees’ claims in respect of period before transfer time-barred – Whether claims in respect of period before transfer time-barred – Equal Pay Act 1970, s 2ZA(3) – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1
Employment – Equality of treatment of men and women. Court of Appeal, Civil Division: Where the employees had been transferred pursuant to the Transfer ofUndertakings (Protection of Employment) Regulations 1981, SI 1981/1794, following which they claimed their equal pay rights five years later relying upon equal pay with comparators who had been employed by the transferor but who had not been transferred to the transferee, the court ruled that the employee’s rights against the transferor were limited in time, and a claim would have to be made within six months of the termination of employment with the transferor.
Hughes v Stafford and Rural Homes Ltd
Employment – Disability – Discrimination – Unfair dismissal – Complaint of discrimination – Employee suffering from adjustment disorder with prolonged depression – Employment tribunal finding employer failing to make reasonable adjustments and second respondent harassing employee – Whether tribunal erring – Whether tribunal giving sufficient reasons.
Employment – Disability. Employment Appeal Tribunal: The employer and the second respondent’s grounds of appeal had not been made out and the employment tribunal’s decision that the employee had been unfairly dismissed, that the employer had failed in its duty to make reasonable adjustments, and had discriminated against the employee for a reason relating to his disability, was upheld.
Alemo-Herron and others v Parkwood Leisure Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Public sector employees being transferred to private sector employer – Contract providing pay increases to be in accordance with collective agreements – New employer refusing to recognise new rates of pay negotiated after transfer – Employment tribunal finding scope of contractual clause limited by European Directive – Tribunal holding employer not obliged to comply with term of contract – Employees appealing – Transfer of Undertaking Regulations 1981, SI 1981/1794, regs 4-6 – Council Directive (EEC) 77/187, art 3 – European Convention on Human Rights, art 11.
Employment – Continuity. Employment Appeal Tribunal: The limitation on a worker’s rights contained in the second paragraph of art 3(2) of Council Directive (EEC) 77/187 had not been transposed into the Transfer of Undertaking Regulations 1981, SI 1981/1794, (TUPE) and did not appear in domestic law. An employment tribunal had been wrong not to follow the domestic interpretation of TUPE in a case where public sector employees had been transferred to private sector employment and sought to uphold a dynamic wage-protection clause in their contracts.
Ankers and others v Clearsprings Management Ltd
Employment – Continuity – Transfer of service provision – Employer providing accommodation for asylum seekers and their dependants – Employer failing to obtain new contract – Whether employer’s employees being transferred to successful contractors – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, reg 3.
Employment – Continuity. Employment Appeal Tribunal: On its findings of primary fact, the employment tribunal had been entitled to conclude that the activity carried on by the employer had been so fragmented that no transfer pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, had taken place.
Klarenberg v Ferrotron Technologies GmbH (Case C-466/07)
European community – Employment – Continuity of employment – Transfer of undertaking, business or part of business – Part of business undertaking of applicant’s employer being transferred to another company (transferee) – Organisational autonomy of part of business undertaking transferred not being retained on transfer – Applicant claiming re-employment with transferee – Domestic courts dismissing claim – Concept of ‘transfer’ – Council Directive (EC) 2001/23, art 1(1)(a), (1)(b).
European community – Employment. In a reference for a preliminary ruling to the European Court of Justice, it was held that art 1(1)(a) and (b) of Council Directive (EC) 2001/23 (on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers ofundertakings, businesses or parts of undertakings or businesses) should be interpreted as meaning that that directive might also apply in a situation where the part of the undertaking or business transferred did not retain its organisational autonomy, provided that the functional link between the various elements of production transferred was preserved, and that that link enabled the transferee to use those elements to pursue an identical or analogous economic activity, a matter which it was for the national court to determine.
Oakland v Wellswood (Yorkshire) Ltd
Employment – Continuity – Transfer of trade, business or undertaking – Unfair dismissal – Employee previously employed by company named Oldco – Oldco entering administration – Sale of Oldco’s assets to respondent Newco – Employee taken on by Newco – Subsequent dismissal – Employment tribunal finding employee not having sufficient service to bring claim for unfair dismissal – Whether tribunal erring – Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, art 8(7).
Employment – Continuity. Employment Appeal Tribunal: In proceedings alleging unfair dismissal, the judge had been correct to conclude that the appointment of joint administrators had been with a view to the eventual liquidation of the assets of the employee’s previous employer, Oldco. Moreover, that construction had accorded with the policy behind reg 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246.
Small and others v Boots Co plc and another
Employment – Remuneration – Deduction from wages – Jurisdiction – Employees receiving bonuses from employer company – Employees subsequently transferred to other employer – Employees transferred back to employer – Employees claiming unlawful deduction from wages and seeking declarations of entitlement to bonus payments – Employment tribunal judge dismissing employees’ claims – Employer cross-appealing on issue of whether tribunal having jurisdiction to determine claim for deduction from wages – Whether tribunal judge erring in law – Whether tribunal having jurisdiction to determine claim for deduction from wages – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794.
Employment – Remuneration. Employment Appeal Tribunal: On the employees’ appeal against the dismissal of their claims for unlawful deduction from wages and the rejection of their applications for declarations of entitlement to bonus payments, the Employment Appeal Tribunal decided that the appeal against the dismissal of the employees’ claims for unlawful deduction from wages would be allowed, and the claims in respect of bonus payments would be remitted for rehearing.