Housing Maintenance Solutions Ltd v JF McAteer & Ors (Transfer of Undertakings : Transfer) [2014] UKEAT 0440_13_0108 (1 August 2014)

Housing Maintenance Solutions Ltd v JF McAteer & Ors (Transfer of Undertakings : Transfer) [2014] UKEAT 0440_13_0108 (1 August 2014)

The Employment Judge erred in law by treating the date on which HMS accepted responsibility for employees as determinative of the date of transfer under TUPE; responsibility as employer arises by operation of law on the date of transfer of the undertaking, not by the wishes or actions of the parties. The date of...

Source-derived case information.

Citation
[2014] UKEAT 0440_13_0108
Parties
Appellant: Housing Maintenance Solutions Ltd; Respondents: UNITE and UNITE Claimants; Respondents: GMB and GMB Claimants; Respondents: UCATT and UCATT Claimants; Respondent: Mr Ryder; Respondent: Mr Rowe
Jurisdiction
United Kingdom
Judgment Date
01 August 2014
Procedural Posture
Employment Appeal Tribunal / Appeal From Employment Judge's Pre Hearing Review Decision
Outcome
Appeal allowed
Legal Topics
Transfer of Undertakings, TUPE, Service Provision Change, Unfair Dismissal, Collective Redundancy, Employer Identity
Employment Law Transfer of Undertakings TUPE Service Provision Change Unfair Dismissal Collective Redundancy Employer Identity

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Parties

Housing Maintenance Solutions Ltd

Appellant

UNITE and UNITE Claimants

Respondents

GMB and GMB Claimants

Respondents

UCATT and UCATT Claimants

Respondents

Mr Ryder

Respondent

Mr Rowe

Respondent

Procedural Posture

Employment Appeal Tribunal / Appeal From Employment Judge's Pre Hearing Review Decision

Legal Issues

  1. 1 Whether the Employment Judge erred in law in determining the date of transfer of an undertaking under TUPE
  2. 2 Whether a transferee assumes responsibility as employer by operation of law or by actions/intentions
  3. 3 Whether a transfer can occur during a period of suspension of activities

Ratio Decidendi

The Employment Judge erred in law by treating the date on which HMS accepted responsibility for employees as determinative of the date of transfer under TUPE; responsibility as employer arises by operation of law on the date of transfer of the undertaking, not by the wishes or actions of the parties. The date of transfer must be determined by when the transferee assumes responsibility for the business by operation of TUPE, considering all relevant circumstances.

Court Disposition

Appeal allowed

Orders

  • Decision of Employment Judge set aside
  • Case remitted to a different Employment Judge to determine the date of the transfer of the undertaking, including consideration of whether the transfer was effected by a series of transactions