Who are “affected employees” for TUPE consultation purposes?
In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.
The relevant company had two distinct businesses in the film and TV industry. When the company faced financial difficulties, one part was sold and its employees transferred under TUPE. The other part was liquidated and its employees dismissed. The employment tribunal held that the dismissed employees should have been consulted under TUPE regarding the part that did transfer and awarded maximum compensation of 13 weeks pay per employee. On appeal, the EAT held that the employment tribunal had been wrong to conclude that the employees whose employment did not transfer were “affected employees” for the purposes of TUPE. It did not follow, for example, that just because the non transferring business was less viable due to the transfer of the other business that employees in the former were affected employees under TUPE. This decision seems to place a significant limit on who could be said to be an affected employee for TUPE consultation purposes.
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