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The publication of new TUPE regulations next month makes it the topic of the moment. One of the trickiest areas is deciding if a job is covered by the rules
The test of whether a job is covered by the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) was laid down by the European Court in Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ECR 519:
"An employment relationship is essentially characterised by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties. To decide whether the rights and obligations under an employment relationship are transferred under Directive 77/187 by reason of a transfer within the meaning of Article 1(1), it is therefore sufficient to establish to which part of the undertaking or business the employee was assigned."
In Birmingham City Council v Gaston (EAT/0508/03) the repairs division of the housing department of Birmingham Council was transferred out. It had been organised prior to April 2004 in four zones, A, B, C and D. Mr Gaston, who had many years of service with the council, worked under an employment contract which commenced in 1975 and recorded his job title as a plumber.
However, he was, from 1979, elected chief federation steward (CFS) for the Amalgamated Engineering and Electrical Union (AEEU) as it was then, on a full-time basis and remained a full-time shop steward up to the date of the transfer in April 2001, a period of more than 22 years. With one exception, he had not done any work as a plumber for that period.
He certainly was not assigned to rotas in A, B, C or D, but, for a short period only, he did participate in an out-of-hours rota which covered housing in the Birmingham area.
Prior to his election as CFS in 1979 he had been allocated as a plumber to contract B. On the transfer, contracts A and B were transferred to Service Team Birmingham and C and D transferred to a different transferee.
Of the AEEU members for which the applicant was responsible as CFS, 64 per cent had previously been in contracts in A and B. Some 33 per cent were transferred with the part of the undertaking concerning C and D to a different transfer transferee and 3 per cent remained employed by the council. The q
