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  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 question was whether Gaston was assigned to contracts A and B.
The tribunal found that in reality he had not been assigned to any part of the undertaking as a plumber for 20 years. The tribunal found that neither in his role as non-practising plumber, nor in his capacity as a trade union official, nor as an out-of-hours plumber was he engaged in activities which allocated him to the part of the undertaking transferred. There was no basis on which the tribunal could reach any other conclusion given the evidence submitted.
It was argued that the tribunal ought to have regard to the decision in Celtec Ltd v Astley  IRLR 629 and to a more general argument that the position of the applicant should be compared with someone who is seconded, on sick leave or on a sabbatical.
The Employment Appeal Tribunal (EAT) gave this short shrift: it considered that the facts might have been different if, for example, he was off sick for a period, even perhaps a long period, while a transfer took place. The same might apply in respect of someone on sabbatical or on an extended holiday. It might also apply in respect of a secondment, but was highly improbable in relation to someone who had been absent for 22 years.
The EAT considered that the tribunal did consider the question of secondment and not only considered it correctly in terms of any issue of law, but gave the only possible answer to the question.
By John McMullen, head of international employment law, Pinsents