OTG Ltd v. Barke & Ors [2011] UKEAT 0320_09_1602 (16 February 2011)

OTG Ltd v. Barke & Ors [2011] UKEAT 0320_09_1602 (16 February 2011)

Administration proceedings under Schedule B1 of the Insolvency Act 1986 are not 'bankruptcy or analogous insolvency proceedings instituted with a view to the liquidation of the assets of the transferor' within the meaning of reg. 8(7) TUPE and art. 5.2 of the Acquired Rights Directive; therefore, on a sale by an administrator, regs. 4 and 7 of TUPE apply and employee rights transfer to the transferee.

Citation
[2011] UKEAT 0320_09_1602
Parties
Appellant: OTG Ltd.; First Respondent: Mr Barke; Second Respondent: Mrs Luke; Third Respondent: Secretary of State; Appellant: Olds; Appellant: Key2Law (Surrey) LLP; First Respondent: Webster Dixon LLP; Appellant: Coyne; Appellant: Head Entertainment
Jurisdiction
United Kingdom
Judgment Date
16 February 2011
Procedural Posture
Employment Appeal Tribunal / Appeal
Outcome
Appeal dismissed
Legal Topics
Transfer of Undertakings, Protection of Employment, Insolvency Proceedings, TUPE Regulations, Acquired Rights Directive
Employment Law Insolvency Law European Union Law Transfer of Undertakings Protection of Employment Insolvency Proceedings TUPE Regulations Acquired Rights Directive

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Parties

OTG Ltd.

Appellant

Mr Barke

First Respondent

Mrs Luke

Second Respondent

Secretary of State

Third Respondent

Olds

Appellant

Key2Law (Surrey) LLP

Appellant

Webster Dixon LLP

First Respondent

Coyne

Appellant

Head Entertainment

Appellant

Procedural Posture

Employment Appeal Tribunal / Appeal

Legal Issues

  1. 1 Whether administration proceedings under Schedule B1 of the Insolvency Act 1986 constitute 'bankruptcy or analogous insolvency proceedings instituted with a view to the liquidation of the assets of the transferor' under reg. 8(7) of TUPE and art. 5.2 of the Acquired Rights Directive
  2. 2 Whether reg. 4 of TUPE applies to transfers by administrators in such proceedings

Ratio Decidendi

Administration proceedings under Schedule B1 of the Insolvency Act 1986 are not 'bankruptcy or analogous insolvency proceedings instituted with a view to the liquidation of the assets of the transferor' within the meaning of reg. 8(7) TUPE and art. 5.2 of the Acquired Rights Directive; therefore, on a sale by an administrator, regs. 4 and 7 of TUPE apply and employee rights transfer to the transferee.

Court Disposition

Appeal dismissed

Orders

  • OTG Ltd. held liable for sums awarded to Mr Barke (£10,336.50) and Mrs Luke (£8,184.82)
  • Reg. 8(7) TUPE does not apply; reg. 4 applies to transfers by administrators