TUPE: employee not assigned to the part of the undertaking transferred

In Onwuka v Spherion Technology (UK) Limited UKEAT/0523/06, a case decided under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 1981 (now replaced by TUPE 2006), the EAT upheld a tribunal's decision that the employee did not transfer over to the transferee with the part of the undertaking transferred.

Although the employee's name had been included in the preliminary lists of those to be transferred and he was sent the material circulated to those who were to be transferred, the tribunal was entitled to hold that, as a matter of practical reality, the employee was no longer employed in the relevant part of the business at the time of the TUPE transfer.

 

The ET summary of this case states the Appellant was employed by R1. He worked for a particular consultancy in R1's business. That part of R1's business was sold. The only issue remaining in the EAT was whether he remained working for that part of R1's business at the time of the sale so as to be automatically transferred to the purchaser's employment, or whether he had by then ceased to work for that part of the business and so was not transferred.

 

Held: the ET was entitled to hold that he had ceased to work in the part of the business transferred and so remained employed by R1.