TUPE

Service provision changes and the short-term task exception

What happens leading up to and after a TUPE transfer is relevant to whether the client intended the contract to last only for a short term and thus be able to benefit from an exception in the service provision change rules.
ICTIS UK Ltd v Mahdi
 

‘Organised grouping of employees’ can include employees temporarily laid off

A temporary lay off from work immediately before a transfer did not necessarily mean that the employees concerned were no longer an ‘organised grouping of employees’ and could not transfer under TUPE.
Inex Home Improvements Ltd v Hodgkins
 

Employee on long-term sick leave was not ‘assigned’ for TUPE

An employee on long-term sick leave who was not expected ever to return to work was not ‘assigned’ to an organised grouping of employees that transferred under TUPE.
BT Managed Services Ltd v Edwards
 

Employee not re-assigned from an organised grouping despite instruction to remove

In the context of a TUPE service provision change an instruction issued by a third party client to remove an employee from the provision of a service did not have the effect of re-assigning the employee away from the organised grouping.
Jakowlew v Saga Care
 

Determining the client of a sub-contractor in a service provision change

TUPE can apply to a transferor and a sub-contractor even though there may be no direct contractual relationship between them. So where a company contracts out a service which is then subcontracted, the subcontractors’ staff may transfer into the company’s employment if the service is taken back in house.
Jinks v London Borough of Havering
 

Discrimination law and TUPE

Can an employee who objects to his or her TUPE transfer (and does not transfer) bring a discrimination claim against the transferee on the basis of being a job ‘applicant’? No, but if the transferee is going to make redundancies, such an employee may be able to pursue a discrimination claim in relation to an offer of suitable alternative employment.
NHS Direct NHS Trust v Gunn
 
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