An employee who had been unable to work due to illness for 6 years and would not be returning to work was not assigned to the group transferring under TUPE.
If a client instructs that an employee be removed from working on its contract which is set to transfer under TUPE, that employee will still transfer if the outgoing employer decides not to heed the instruction.
The First Tier Tribunal has held that an outgoing employer breached its obligations under the TUPE regulations by failing to notify the incoming employer of potential claims for unlawful deductions of wages. The fact that the failure to pay happened after the deadline for notification was not a barrier, as the outgoing employer had reasonable grounds for believing wages would go unpaid before it passed information to the incoming employer.
The EAT has held that an employee, who was a project manager, did not transfer under TUPE. The EAT cautioned against placing too much emphasis on how much time an employee spends on each project and said that careful consideration should be given to the group transferring and whether the employee belongs to it.
Normally, a share sale would not constitute a TUPE transfer because the identity of the employer does not change. However, the courts have accepted that there may be a transfer of an undertaking to a holding company or a sister company following a share sale. In this case, the control exercised by the parent company of the purchaser of the target’s shares and extensive integration exercises carried out by it led to the judgment that there had been a TUPE transfer.