Employees who were laid off just before a TUPE transfer, still transfer

During December 2012 they finished the work they were contracted to carry out and they were temporarily laid off under the terms of their contracts until January 2013. There was some form of disagreement between their employer and the company subcontracting the work and therefore the work from January 2013 moved to another company.

In order for there to be a TUPE transfer, employees need to be carrying out the work which is moving over, immediately before the transfer and therefore the Employment Tribunal initially decided that there was no organised grouping of employees immediately before the transfer and thus there was not TUPE transfer. The Employment Appeal Tribunal disagreed and considered that the aim of protecting employment under the TUPE Regulations would be defeated if this was the case.

The EAT concluded that a temporary cessation in work would not automatically prevent there being a TUPE transfer and Tribunals should take into account the purpose, nature and length of the cessation in work in deciding whether a break would prevent individuals transferring.

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