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TUPE – Affected employees
In I LAB Facilities v Metcalfe and others, the EAT has held that there is no obligation to consult employees under regulation 13 of TUPE where part of the business is subject to a transfer and those employees transfer, and the employees who do not transfer lose their jobs when the remainder of the business closes down. The non-transferring employees were held not to be “affected employees” within the meaning of regulation 13(1) of TUPE.
The EAT said that an employee will not ordinarily be affected for the purposes of the regulations simply because the part of the business in which they work is made less viable by the transfer of another part in which they have no connection. There needs to be a more solid connection between the individual employee and the part of the business transferring for them to be affected and thus for the obligation to consult to arise.
The EAT also held that there is no obligation to consult where there is an intended transfer which never materialises.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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