What constitutes a business transfer?

Cheesman and others v R Brewer Contracts, unreported,
November 2000, EAT

In 1998, Brewer took over the contract to maintain
Teignbridge council’s rented properties from Onyx. Brewer did not take on any
of Onyx’s staff. No tangible or intangible assets passed directly from Onyx to
Brewer and none passed indirectly via the council.

Cheesman and his colleagues argued this was a Tupe transfer
and claimed unfair dismissal and redundancy pay. The tribunal held that there
had been no transfer.

On appeal, the EAT held that the tribunal failed to take
into account the existing (albeit uncertain) Tupe case law and the criteria
laid down by the European Court of Justice. It failed to look at things “in the
round” and omitted to consider all relevant facts relating to the transaction.
In particular, the tribunal had failed to determine whether the undertaking had
continued and retained its identity following the transaction, the approach
taken by the Court of Appeal in 1999 in ECM v Cox. The matter went back to
tribunal.

 

Disciplinary investigation was discriminatory

Virdi v The Commission of the Police of the Metropolis, EOR
Discrimination Digest No 45, Employment Tribunal

Virdi, an Asian police officer, was suspected of sending
racist hate mail to black colleagues and himself. A white female officer,
Bachelor, was also suspected and interviewed. Virdi, however, was covertly
taped at a meeting unrelated to the incident in case he made any admissions
about it. He was then arrested, his house searched and he was eventually
suspended from work. He subsequently brought a successful race discrimination
claim.

The tribunal found that Virdi had not sent the letters and,
taking Bachelor as the comparator, held that Virdi had been treated differently
and detrimentally. Unlike Bachelor he was not interviewed informally, there was
an attempt to entrap him in a taped interview, his house was searched and he
was arrested and suspended. Virdi was awarded a record £100,000 for injury to
feelings, £25,000 aggravated damages and almost £25,000 interest.

Note: Virdi was dismissed from the Metropolitan Police in
March and his unfair dismissal claim will be heard this year

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