Transport & General Workers Union v. Swissport (UK) Ltd & anor [2007] UKEAT 0603_06_2706 (27 June 2007)

Transport & General Workers Union v. Swissport (UK) Ltd & anor [2007] UKEAT 0603_06_2706 (27 June 2007)

The Employment Tribunal erred in law by failing to consider whether a stable economic entity could be identified at the date of the putative transfer, as required by TUPE and relevant case law. TUPE is capable of applying to transfers in insolvency situations, even where the business is not transferred as a going concern, and there is no basis for reading in a restriction to exclude such cases.

Citation
[2007] UKEAT 0603_06_2706
Parties
Appellant: Claimants; 1st Respondent: Swissport (UK) Limited; 2nd Respondent: Aer Lingus Ltd
Jurisdiction
United Kingdom
Judgment Date
27 June 2007
Procedural Posture
Employment Appeal / Appeal From Employment Tribunal Decision
Outcome
Appeal allowed; cross-appeal dismissed; case remitted for rehearing before a different Chairman.
Legal Topics
Transfer of Undertakings (tupe), Acquired Rights Directive, Insolvency and Employee Rights, Protective Awards, Failure to Consult, Stable Economic Entity, Employment Protection on Business Transfer
Employment Law Insolvency Law European Union Law Transfer of Undertakings (tupe) Acquired Rights Directive Insolvency and Employee Rights Protective Awards Failure to Consult +2 more

Case Brief

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Parties

Claimants

Appellant

Swissport (UK) Limited

1st Respondent

Aer Lingus Ltd

2nd Respondent

Procedural Posture

Employment Appeal / Appeal From Employment Tribunal Decision

Legal Issues

  1. 1 Whether the Employment Tribunal erred in law by considering only the existence of a stable economic entity prior to transfer rather than at the date of transfer for TUPE purposes
  2. 2 Whether TUPE applies to transfers effected in insolvency situations where the business is not transferred as a going concern

Ratio Decidendi

The Employment Tribunal erred in law by failing to consider whether a stable economic entity could be identified at the date of the putative transfer, as required by TUPE and relevant case law. TUPE is capable of applying to transfers in insolvency situations, even where the business is not transferred as a going concern, and there is no basis for reading in a restriction to exclude such cases.

Court Disposition

Appeal allowed; cross-appeal dismissed; case remitted for rehearing before a different Chairman.

Orders

  • The appeal is allowed on the issue of the timing for identification of a stable economic entity under TUPE.
  • The cross-appeal on the insolvency exclusion is dismissed.