TUPE and the ‘date of transfer’
Can a transfer of an undertaking under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) take place over a period of time, or must there be a particular point in time at which the undertaking is transferred? Last year, in Celtec Limited v Astley, the European Court of Justice (ECJ) went against the opinion of both the Court of Appeal and the advocate general. It ruled that the ‘date of a transfer’ is a particular point in time and is the date on which responsibility as employer for carrying on the business of the unit transferred moves from the transferor to the transferee. The House of Lords has now handed down its ruling on the case. It has held, following the ECJ ruling, a TUPE transfer must take place on a specific date. Employees and employers cannot agree or arrange for the transfer to take place on a date other than the true legal date of the transfer.
Disability discrimination comparator
A tribunal was wrong when it decided that the dismissal of an HIV-positive employee amounted to direct disability discrimination. Although the tribunal found the reason for dismissal was the risk of transmitting HIV, it should have gone on to look at whether a comparator with an equally infectious disease would have received the same treatment – High Quality Lifestyles Ltd v Watts, EAT
‘Worker’ status for consultant
An arrangement that placed the individual under a duty to introduce a company to contacts and the company under a duty to provide him with leads had sufficient mutuality of obligation to amount to a contract for services. Accordingly, the individual satisfied the definition of a ‘worker’ under the Employment Rights Act 1996 and the Working Time Regulations 1998, and the definition of ‘employment’ in the Race Relations Act 1976 – Younis v Trans Global Projects Ltd and another, EAT
Burden of proof in sex and race claims
This EAT case provides useful guidance on the approach to be taken by a tribunal when considering the burden of proof in discrimination claims. As the EAT commented in this case: “There cannot be a finding of sex or race discrimination every time an employer carries out a selection process unfairly to the detriment of someone who is black or female” – Network Rail Infrastructure Ltd v Griffiths-Henry, EAT
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