TUPE - Who Transfers?
by Liam
The EAT’s President, Mr Justice Ellias, has handed down a 46 page decision in Royal Mail Group Ltd v CWU. The case makes light reading for those with an interest in TUPE and provides a number of observations as to the proper construction of regulations 4 and 13 of TUPE.
Regulation 4 related to the effect of TUPE on contracts of employment and sets out which employees transfer under TUPE and regulation 13 deals with information and consultation.
The case casts doubt on what some might consider to be the underhand tactic of permanently assigning employees to or away from the undertaking shortly before the transfer to make fewer employees in scope (where the employer is understaffed and does not wish to lose good employees) or more employees in scope (where the employer has surplus employees and wishes to dump the dead wood). Although the point is not expressly decided, it is suggested that re-assigning employees is ok in principle, but not if done deliberately to evade the consequences of TUPE.
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