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TUPE – Change in identity of employer
In Hyde Housing Association v Layton the EAT, upholding the employer’s appeal, has held that there was no transfer of the Claimant’s employment on the facts of the case. This concerned an employee changing from being employed by a single employer to a group of employers which included the original employer. Nonetheless the EAT noted that multiple transferors would not prevent TUPE applying – this situation was one in which there were multiple transferees.
The Claimant had been employed by Martlet which provided social housing. Martlet joined with other providers to form the Hyde Group, which was not a separate legal entity. There was a restructure, following which the Claimant was dismissed by Martlet and re-engaged on a new contract by the Hyde Group, which included Martlet. This is apparently a common arrangement in the housing sector. The Claimant alleged he had been unfairly dismissed in contravention of TUPE. The EAT however held that since Martlet had retained liability for the Claimant’s employment, notwithstanding that its liability was now joint and several with other employers, the change of employer was not relevant for the purposes of TUPE. Neither did the Acquired Rights Directive require TUPE to apply because the employer’s legal position in respect of the employee had not changed. However as the issue is somewhat unusual, the Claimant has received leave to appeal.
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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