FACTS Mrs McLean was employed by the BBC as an occupational health nurse. In February 2006, it announced that it was transferring its occupational health service to Capita Health Solutions (Capita) on 1 April 2006. This meant that McLean’s employment would transfer to Capita under the 1981 TUPE regulations on this date.
Those regulations have since been replaced by the 2006 version, but the point is still valid. McLean did not wish to transfer to Capita and she raised a grievance with the BBC, which was rejected. The corporation wrote to McLean stating that if she did not wish to transfer to Capita it proposed to second her to Capita while she worked out a six-week notice period. The broadcaster said that McLean would continue to be employed by the BBC for that six-week period and that she would be working with Capita to help the transition of the OH service.
In reply, she wrote that she was unwilling to transfer, under TUPE regulations, to Capita but would do the handover. She said her employment would therefore terminate on 12 May 2006, and the BBC confirmed that she would remain a BBC employee until 12 May but would be seconded to Capita from 1 April to 12 May.
On 1 April, the BBC’s occupational health service was transferred to Capita. McLean carried out her agreed duties for the BBC until 12 May when her employment ended. She issued an employment tribunal claim, which was appealed, and the Employment Appeal Tribunal (EAT) had to determine whether, a) her employment had transferred under TUPE to Capita or, b) she had validly objected to the transfer and had remained a BBC employee.
DECISION The employment tribunal found that McLean’s employment had transferred to Capita, and the EAT agreed. It said she had not validly objected to being transferred to Capita. In fact, she had been prepared to work for Capita for six weeks.
But the EAT said that even if she had validly objected, her employment with the BBC could not have continued past 1 April. The EAT said TUPE does not allow the employment of objecting employees to continue after the date when they would have transferred. The parties cannot validly agree to alter this, such as by secondment.
IMPLICATIONS This case undermines the idea of seconding a person who would have transferred under TUPE, since the objection mechanism is often used as part of such secondment paperwork. It also confirms that if employees validly object to their TUPE transfer then their employment will end when it would have transferred.
Plus, it demonstrates how the parties to a transfer cannot try to adjust the workings of TUPE by, for example, agreeing their own arrangements about transfer date or what happens to people who object. So, transferee employers should be careful if employees appear to object yet are kept-on by the transferor employer, doing unchanged work: in that situation, regardless of what the parties agree, those people’s employment will pass to the transferee.
Jonathan Hearn, legal director, DLA Piper
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