Regulation 11 of TUPE states that prior to a transfer, the transferor must provide information including particulars of employment to the transferee. In Born London Limited v Spire Production Services the Employment Appeal tribunal (EAT) found that stating incorrectly that a bonus was non-contractual did not constitute a breach of these regulations.
Born, a print finishing firm, had taken over a contract from Spire. Prior to the transfer, Spire provided Born with information including that a non-contractual Christmas bonus was in place, however the bonus turned out to be contractual.
The ET dismissed Born’s claim for misstatement under Regulation 12 of TUPE and the EAT has now dismissed the subsequent appeal, concluding that the claim had no reasonable prospect of success. Information was provided as required and there was no requirement to state whether the particulars were contractual or not. While such information may provide greater clarity to the transferee, the EAT believed the duty was on the transferee as “that must be for it to pursue as part of its due diligence.”
Although this case may be a relief to transferors, it serves as a stark reminder of the risk of inaccurate information being provided under TUPE. For more information about this area, please contact our Employment team.