HR Articles

TUPE can, and often does, arise in insolvency situations and it’s important to be aware that some TUPE provisions are relaxed in such situations in a bid to make failing businesses more attractive to prospective buyers.

In GMB & Others v HC-One Ltd and ADL Liverpool Ltd

Regulation 11 of TUPE states that prior to a transfer, the transferor must provide information including particulars of employment to the transferee.

For there to be a service provision change under TUPE, there must, immediately before the transfer, be an organised grouping of employees situated in Great Britain which has as its ‘principal purpose’ the carrying out of the activities on behalf of the client.

In Davies v Droylsden Academy, the claimant was a lettings manager at a company which provided property services to Droylsden Academy.

The EAT has held that TUPE does not apply where a new provider ceases to carry out services “on the client’s behalf.”

The Employment Appeal Tribunal has found that an employment tribunal was wrong in finding that TUPE did not apply where there had been a lay-off of employees as a result of a commercial dispute with the main contractor leading to termination of the contract before the new contractor took on the services (Mustafa v Trek Highways Services Ltd and others UKEAT/0064/15).

If a client decides to outsource certain services for the first time, reassign those services to another contractor or bring those services back "in-house," there may be a service provision change under TUPE. If however the activities performed relate to a one off event or task of short-term duration, TUPE will not apply.