Employment Alert No. 76 - TUPE- Definition of Assignment
September 29, 2003
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What is the issue? |
The Transfer of Undertakings (Protection of Employment) Regulations 1981 - provide for the contracts of employment of all those employed in a relevant undertaking to transfer to the transferee. This raises the question - who is employed in the undertaking? European case law developed the principle that the test was to see who was assigned to the undertaking.
In the recent case of Securiplan v Mr Bademosi, the Employment Appeal Tribunal looked again at this issue.
The case involved an individual, Mr Bademosi, who for 21 years had been employed as a security officer at one site. Following a lengthy illness he returned to work on another site (at a Magistrates Court). His employer promised that within a matter of weeks he would return to his original place of work. In the meantime his employer’s contract to provide services at the Magistrates Court was terminated and there was a TUPE transfer to a new provider.
Was Mr Bademosi "assigned" to the security undertaking at the Magistrates' Court and, as a result, had his employment transferred to the new provider?
The EAT found that Mr Bademosi had not transferred to the new provider. He had only been assigned to the Magistrates' Court on a temporary basis. The temporary nature of the assignment meant that he was not assigned to the undertaking.
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What does this mean for employers? |
This case certainly provides an argument that those not permanently assigned to the undertaking in question should not transfer to it. However, it was undoubtedly relevant in this case that Mr Bademosi had worked at a different site for 21 years and was due to return to it very shortly.
Transferors in a TUPE situation should:
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Review any proposed list of transferring employees;
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Be alert to arguments from transferees that employees engaged on a temporary basis will not transfer.
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Be aware that promises made to the individual may impact on whether the employee transfers or not.
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Be aware should the employee be deemed not to transfer that they may face a redundancy situation and the associated procedural requirements and liability.
