Mr Nobody (Monkey_Junkie_No1)
@l0alvpkbdbghejse
Joined Sep 6, 2023
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Oct 27, 2023
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(1) Ms Govaerts’ employment could be split between the transferees depending on the time spent working for each assignment;
Option 1 was held to be the correct approach as this would ensure a fair balance between protecting both workers and transferees.
where division of the contract as a result of the transfer is possible
where it doesn’t worsen the individual’s working conditions
transferee(s) would be liable for any consequent termination of the employment relationship,
ECJ’s judgment only applied in the case of business transfers under Regulation 3(1)(a) of TUPE and not to service provision changes under Regulation 3(1)(b) of TUPE.
This has now all changed as a result of the EAT’s decision in McTear Contracts Limited v Bennett and others.
Under the retender, the work was split into two lots – based on a geographical split of north and south.
The Employment Tribunal agreed with Amey’s allocation of employees.
The EAT considered whether Govaerts should apply in the case of service provision changes under Regulation 3(1)(b) of TUPE and (perhaps unsurprisingly given that there was no opposition to this approach from any of the parties) concluded that it should.
In Govaerts, one of the questions referred to the CJEU was whether there would be no transfer:
“…if it is not possible to determine separately the extent of the worker’s employment in each of the transferred parts of the undertaking.”
The CJEU didn’t directly address this but rather rejected outright the possibility of there being no transfer