TUPE transfer – a particular point in time
Celtec Limited and Astley, European Court of Justice, 26 May 2005
In 1989, the government set up a number of Training & Enterprise Councils (TECs), staffed by civil servants on three-year secondments. At the end of the secondments, the civil servants were free to return to the Civil Service, or take up employment with the TEC.
Astley and two colleagues were seconded to work for one such TEC, called Celtec, and by 1993, Astley and his colleagues had resigned from the Civil Service, and had taken up jobs with Celtec. In 1998, the three claimants brought tribunal proceedings, and sought to establish whether their continuous employment commenced in 1993, or included their previous service with the Civil Service.
Their claim raised the question of whether a transfer for the purposes of Council Directive 77/187 (the directive) (transposed into UK law by the TUPE Regulations 1981), could include a transfer taking place over a period of time, rather than one on a single date.
The tribunal found that the transfer had been a continuing process that started in 1990, and was completed with the last secondment, which ended in 1996. So the claimants had continuity of employment from the start of their employment with the Civil Service.
The Employment Appeal Tribunal disagreed, finding that the transfer was completed in September 1990, long before the claimants became employees of Celtec. However, the Court of Appeal restored the tribunal decision.
Finally, the House of Lords referred the matter to the European Court of Justice (ECJ). The ECJ concluded that the date of a transfer for the purposes of the directive is a particular point in time, and is the date when responsibility as employer for carrying on the business of the unit transferred moves from the transferor to the transferee. That date cannot be postponed to another date at the will of the transferor or transferee.
The matter has now been referred back to the House of Lords to apply the ECJ’s test to the facts of this case.