A recent case concerning TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) has shown that the Regulations can be used to take action against an employer despite a gap of five months between contractors providing services.
The TUPE Regulations exist as a protection for employees of a company who lose their job as a result of the transfer of a business. If the business resumes in a similar form, the employer does not have the right to dismiss their staff if it can be deemed a transfer. The definition of a transfer in the UK courts hinges on whether there is an “organised grouping” of employees with the purpose of carrying out its specific activities for the client. Usually this comes into effect when there is no gap between the provision of services and the business simply resumes under another name, but in Colino Siguenza de Valladolid and Others ECJ, the claimant was able to show that the company that had employed him had resumed services after a gap of five months using the same premises and equipment, but different staff. As a result of this, the company was deemed to have transferred, rather than dissolved. In this case, the employment was related to teaching work, and the five months’ gap between contracts had occurred during the school holidays. The Employment Appeal Tribunal said that a “temporary lay-off caused by a temporary absence of work” was not enough to dissolve the organised grouping.
This is good news for employees of contractors, as it extends the protections afforded by the TUPE Regulations. For contractors, this means that they can no longer rely on a gap between providing services to prevent a transfer from falling under the Regulations.
If you feel that you have been unfairly dismissed in a similar set of circumstances, our Employment team has knowledge and experience in matters involving TUPE and can assist.