Law Society of England and Wales v Secretary of State for Justice & Anor [2010] EWHC 352 (QB) (26 February 2010)

Law Society of England and Wales v Secretary of State for Justice & Anor [2010] EWHC 352 (QB) (26 February 2010)

The cessation of LCS and the commencement of OLC does not constitute a relevant transfer under TUPE because it is an administrative reorganisation between public administrative authorities, falling within Regulation 3(5) TUPE. Even if there were an economic entity, the transfer is excluded by the Henke exception. COSOP does not apply because OLC is a new entity with a new function, and the circumstances fall within the exceptions to COSOP. There is no legal requirement for automatic transfer of LCS staff to OLC under TUPE or COSOP.

Citation
[2010] EWHC 352
Parties
Claimant: The Law Society of England and Wales; First Defendant: The Secretary of State for Justice; Second Defendant: The Office for Legal Complaints
Jurisdiction
England and Wales
Judgment Date
26 February 2010
Procedural Posture
Judicial Review/declaratory Relief / High Court First Instance Judgment
Outcome
Claim dismissed
Legal Topics
Transfer of Undertakings (tupe), Public Sector Employment, Legal Services Regulation, Employment Rights, Statutory Interpretation
Employment Law Administrative Law Public Law Transfer of Undertakings (tupe) Public Sector Employment Legal Services Regulation Employment Rights Statutory Interpretation

Case Brief

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Parties

The Law Society of England and Wales

Claimant

The Secretary of State for Justice

First Defendant

The Office for Legal Complaints

Second Defendant

Procedural Posture

Judicial Review/declaratory Relief / High Court First Instance Judgment

Legal Issues

  1. 1 Whether the cessation of the Legal Complaints Service (LCS) and the commencement of the Office for Legal Complaints (OLC) constitutes a transfer of an undertaking under TUPE 2006.
  2. 2 Whether Regulation 3(5) TUPE (the 'Henke exception') applies to exclude TUPE in this context.
  3. 3 Whether the Cabinet Office Statement of Practice (COSOP) applies to the transfer of staff from LCS to OLC.

Ratio Decidendi

The cessation of LCS and the commencement of OLC does not constitute a relevant transfer under TUPE because it is an administrative reorganisation between public administrative authorities, falling within Regulation 3(5) TUPE. Even if there were an economic entity, the transfer is excluded by the Henke exception. COSOP does not apply because OLC is a new entity with a new function, and the circumstances fall within the exceptions to COSOP. There is no legal requirement for automatic transfer of LCS staff to OLC under TUPE or COSOP.

Court Disposition

Claim dismissed

Orders

  • Declarations sought by the Law Society refused.
  • No order for automatic transfer of LCS staff to OLC under TUPE or COSOP.