Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

This case in the Employment Appeal Tribunal concerns the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) to a business transfer where the transferee (the acquiring company) hasn’t specified that TUPE applies to the transfer.

The facts in Gabriel v Peninsula Business Services Ltd & Anor

Ms Gabriel (“the Claimant”) commenced employment with Peninsula Business Services (“the First Respondent”) in March 2007. In January 2007 the First Respondent had purchased the shares of a company called Qudos Consulting Ltd and changed its name to QDOS Taxwise Ltd. In December 2007 the Claimant started working in the First Respondent’s Taxwise department. She remained employed with the First Respondent.

On 26 February 2009 the First Respondent notified its employees by email that were working in the Taxwise department that QDOS Taxwise Ltd had changed its name to Taxwise Services Ltd (“the Second Respondent”) and that from 1 April 2009 the trade and assets of the Taxwise business would transfer to the Second Respondent. The Claimant did not receive this email. She was therefore unaware that her employment had transferred. She remained on her existing terms and conditions and did not receive any notification that the identity of her employer had changed. However, her payslip did change to identify the Second Respondent as her employer and she received a P60 indicating that her employment had changed.

The Claimant argued at the Employment Tribunal that Peninsula had not argued that TUPE applied at the time of the transfer or afterwards. Her contract of employment could therefore not have automatically transferred to the Second Respondent. The Employment Tribunal rejected this argument and stated that TUPE did in fact apply and the Claimant had therefore transferred to the Second Respondent. The Claimant appealed on the grounds that:

–          Neither of the Respondents had stated that TUPE applied to the transfer of the Claimant’s contract of employment. In the absence of statutory guidance the position relied on was therefore that of common law – the House of Lords’ decision in Nokes v Doncaster Amalgamated Colleries Ltd (1940)

The law relating to the transfer of employment

If TUPE applies to the transfer of an employee’s contract of employment from a transferor business to a transferee business then under TUPE the transferee assumes all assets and liabilities of the transferring business. This includes the contract of employment of employees of the transferor. However, the transferor must inform its employees that TUPE applies to the transfer of their employment. If the transferor fails to do so then TUPE will not necessarily apply to the transfer and the employee’s contract of employment may not transfer automatically to the transferee.

The Employment Appeal Tribunal’s decision in Gabriel v Peninsula Business Services Ltd & Anor

The Employment Appeal Tribunal considered that TUPE did not apply in this instance. The fallback position was therefore to consider the binding decision of the House of Lords in Nokes v Doncaster Amalgamated Colleries Ltd. In Nokes the House of Lords considered that the contract of employment of an employee cannot be automatically transferred to another employer without his or her consent. The Claimant had not consented to the transfer and her employment therefore remained with Peninsula Business Services.

Our specialist employment lawyers’ thoughts on Gabriel v Peninsula Business Services Ltd & Anor

Our guidance for employers in this case would be:

  • In the appropriate circumstances make sure that you inform all employees subject to the transfer that the transfer of their employment will be subject to TUPE
  • Make sure that all employees have been informed. This is crucial. Failure to inform may mean that TUPE does not apply to that employee’s transfer.
  • To dot the I’s and cross the t’s make sure that employees either have a clause in their contract giving explicit consent to any potential transfer or make sure that all employees consent to the transfer

Our guidance for employees in this case would be:

  • Check your contract of employment to determine what your rights and obligations in the case of a TUPE transfer are
  • Carefully consider your position if you’re informed that you’re going to be subjected to a TUPE transfer. It is advisable to obtain specialist employment law advice.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

124 Reviews

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 5 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 6 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 6 months ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 6 months ago

Anonymous

Easy to get hold of. Quick.

Posted 7 months ago

Owen J

Very helpful, efficient service.

Posted 7 months ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 7 months ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 7 months ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 7 months ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 7 months ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 7 months ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 7 months ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 7 months ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 7 months ago

Tim O

Experienced and competent advisors

Posted 7 months ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 7 months ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 7 months ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 8 months ago

Anonymous

Good service

Posted 8 months ago

Anonymous

Excellent professional service. Highly recommend.

Posted 8 months ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 8 months ago