TUPE and Multiple TransfereesPosted: 18 Mar 2021
What happens to me when I work across a number of my employers’ businesses, which are then transferred under new contracts to multiple transferees? Do I stay behind? Or do I work for the transferee who’s acquired the majority of the work I did? Or do I go to all transferees in proportion to the work done for them?
In ISS Facility Services NV the European court ruled that on a transfer with multiple transferees and when employees work across all parts transferred they will transfer to all new (multiple) transferees, depending on the proportion of time worked with the he old employer.
This sounds nonsense in practice, but the UK EAT has now applied the decision. And it having being decided before 31 December 2020 it forms part of our EU Retained law, i.e., British courts have to apply it.
In Bennett v Mitie Contracts the EAT has shown due deference to this strange state of affairs.
A local authority ("N)" re-tendered the work for replacement of kitchens within its social housing stock. All work under the previous contract had been carried out by a single contractor (“A”). A group of A’s employees had worked exclusively on the contract between N and A. When the work was re-tendered, it was split by N on geographical lines into two separate contracts w awarded to two new contractors.
Between the date of the ET Judgment and the appeal, the CJEU issued its decision in ISS. The EAT concluded that the ET Tribunal had correctly regarded itself as being bound at the time of its Judgment by UK case law (which would not have sent employees off to multiple employers as per ISS). The case was remitted to consider the application of the decision in ISS. ISS was based on the European Acquired Rights Directive and in principle applies to Reg 3(1)(a)(business) transfers.
Does it inevitably apply to a Reg 3(1)b)(service provision transfer), a creature of UK law only? The answer is probably also yes. If the decision is applied in this way we are going to get some bizarre results, not the least of which having to do the same work but for a number of different employers across the working week!
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