Law Society of England and Wales v Secretary of State for Justice & Anor

Law Society of England and Wales v Secretary of State for Justice & Anor

There is neither a transfer of the LCS undertaking nor a transfer of an economic entity retaining its identity to OLC. Even if there were, Regulation 3(5) TUPE would exclude the application of TUPE as this is a transfer of administrative functions between public administrative authorities. COSOP does not apply to require transfer of staff, and no declaration should be granted.

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 / Judgment After Expedited Trial
Outcome
Claim dismissed
Legal Topics
Transfer of Undertakings (tupe), Public Sector Staff Transfers, Statutory Interpretation, Employment Rights, Administrative Reorganisation
Employment Law Administrative Law Public Sector Law Transfer of Undertakings (tupe) Public Sector Staff Transfers Statutory Interpretation Employment Rights Administrative Reorganisation

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 / Judgment After Expedited Trial

Legal Issues

  1. 1 Whether the cessation of the LCS and the start of the OLC is a transfer of an undertaking under TUPE
  2. 2 Whether Regulation 3(5) TUPE (Henke exception) applies to exclude TUPE
  3. 3 Whether the Cabinet Office Statement of Practice (COSOP) applies to the transfer

Ratio Decidendi

There is neither a transfer of the LCS undertaking nor a transfer of an economic entity retaining its identity to OLC. Even if there were, Regulation 3(5) TUPE would exclude the application of TUPE as this is a transfer of administrative functions between public administrative authorities. COSOP does not apply to require transfer of staff, and no declaration should be granted.

Court Disposition

Claim dismissed

Orders

  • The Law Society's claims are dismissed.
  • Costs to follow the event; interim payments on account of costs ordered.