ICAP Management Services Ltd v Berry & Anor [2017] EWHC 1321 (QB) (06 June 2017)

ICAP Management Services Ltd v Berry & Anor [2017] EWHC 1321 (QB) (06 June 2017)

There was no transfer of an economic entity within the meaning of TUPE because there was no change in employer; the claimant (IMSL) remained the employer before and after the share sale. The business continued to operate as before, with no new party stepping into the shoes of the employer. Therefore, the first defendant's employment contract was not terminated by operation of TUPE, and the claimant was entitled to enforce the garden leave provision.

Citation
[2017] EWHC 1321 (QB)
Parties
Claimant: ICAP Management Services Limited; First Defendant: Dean Berry; Second Defendant: BGC Services (Holdings) LLP
Jurisdiction
England and Wales
Judgment Date
06 June 2017
Procedural Posture
Injunction Application (employment) / Judgment After Expedited Trial
Outcome
Claimant succeeds; injunction continued until 21 July 2017.
Legal Topics
TUPE (transfer of Undertakings), Garden Leave, Post Termination Restrictions, Injunctions, Employee Rights, Business Transfers
Employment Law Contract Law TUPE (transfer of Undertakings) Garden Leave Post Termination Restrictions Injunctions Employee Rights Business Transfers

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Parties

ICAP Management Services Limited

Claimant

Dean Berry

First Defendant

BGC Services (Holdings) LLP

Second Defendant

Procedural Posture

Injunction Application (employment) / Judgment After Expedited Trial

Legal Issues

  1. 1 Whether the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied to the transfer of the business and the employment of the first defendant.
  2. 2 Whether the claimant was entitled to enforce the garden leave provision in the employment contract.
  3. 3 Whether the second defendant induced breach of contract and whether injunctive relief should be granted against it.

Ratio Decidendi

There was no transfer of an economic entity within the meaning of TUPE because there was no change in employer; the claimant (IMSL) remained the employer before and after the share sale. The business continued to operate as before, with no new party stepping into the shoes of the employer. Therefore, the first defendant's employment contract was not terminated by operation of TUPE, and the claimant was entitled to enforce the garden leave provision.

Court Disposition

Claimant succeeds; injunction continued until 21 July 2017.

Orders

  • The interim injunctions granted by O'Farrell J are continued until 21 July 2017.
  • The claimant is entitled to enforce the garden leave provision against the first defendant.