McChrystal & Ors v. Wimpey Homes Holdings Ltd [2003] UKEAT 0046_03_2711 (27 November 2003)

JUDGMENT © Copyright 2003 APPEARANCES For the Appellant Ms C McManus, Solicitor Of- Messrs Harper Macleod Solicitors The Ca'd'oro 45 Gordon Street GLASGOW G1 3PE For the Respondents Mrs S Stark, Advocate Instructed by- Messrs Sunley Solicitors 46 Nelson Road WHITSTABLE CT5 1EA LORD JOHNSTON: This is an appeal from a preliminary determination by the Employment Tribunal sitting in Glasgow, with regard to the issue of whether or not, against the background of an internal re-organisation of what could be described as the "Wimpey Group", the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE"), applied. The background to the matter is that Wimpeys managed their business in a number of different entities with different names and sought to effect a re-organisation which has apparently led to apparent redundancies. The issue before the Tribunal however involved whether or not there was a transfer and this was focussed on by the Tribunal as raising the issue of who was the employer of the relevant applicants, now appellants. At the end of their decision the Tribunal confirmed upon the evidence that the employer, at all times, was Wimpey Group Services Ltd, referred to as WGSL albeit that the various employees were assigned different divisions within the Group apparently on a permanent basis. Ms McManus, appearing for the appellants, submitted that the Tribunal had misdirected itself inasmuch that it first should have asked the question whether or not there were identifiable economic entities within the Group capable of being transferred which, thereafter, happened as a matter of fact with the re-organisation. However, Mrs Stark, appearing for the respondents, submitted quite simply that TUPE could not arise in any circumstances where there was no change of employer. In other words, there had to be a transfer between one employer and another, albeit also there had to be an identifiable economic unit or entity being thus transferred. If, she submitted, therefore, there was no transfer of employment or no change in employer, there could be no application of TUPE. We have no hesitation in preferring this latter argument. It seems to us that the Regulations expressly in terms of Regulation 3 apply to a transfer from one person to another and that must be eliminated or disapplied if, at the end of the re-organisation, as here, the employer remains the same person both before and after. We therefore consider the issue of whether there was an economic entity capable of being transferred, to be nothing to the point. For this simple reason we consider this appeal must be dismissed. The case will be remitted back to the same Tribunal to proceed as accords. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII