Tupey

The case of Onwuka v Spherion Technology (UK) Ltd and Others [2008] involved an employee who appealed against a decision by an employment tribunal that his employment had not been transferred pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“the TUPE Regulations”). The employee in this case was of Nigerian origin. He was employed by the first respondent as a computer software consultant. The employee principally worked in the first respondent’s software quality management practice (“the SQM Business”).

The first respondent’s business was in decline. However, during 2002 it was awarded an important new contract and it was intended that the employee would be made a member of the team assigned to work on that contract.

The employee intimated that he did not wish to be assigned to the team due to the fact that he perceived it would be likely that he would not be able to work harmoniously with the team leader.

The employee cited health problems and suggested that they might be exacerbated by work related stress. At the time this was happening, the first respondent was in the process of selling off sections of the SQM Business. On the 18th of October 2002, the SQM Business was transferred to the second respondent. It was then transferred to the third respondent.

It was established between the parties that any employee assigned to the SQM Business was transferred to the employment of the third respondent pursuant to the TUPE Regulations. Unfortunately, the respondents were of the opinion that the employee had not been transferred in such a way.

The matter was brought before a tribunal, which held that he had not been transferred. It was of the opinion that he was not transferred due to the fact that he had ceased to work in the SQM Business. There had been no work for him in the SQM Business once he made his position with regards to the team leader and his health issues.

The employee appealed to the Employment Appeals Tribunal against this decision.

The principal issue to be decided was whether the employment tribunal had erred in dismissing the employee's claim that his employment had been transferred to the second and third respondents pursuant to the TUPE Regulations.

The appeal was dismissed.

It was held that in this case, there had been a number of factors which the employment tribunal had to consider. It was decided that on the facts, that the employee had not been assigned to the SQM Business and was not therefore transferred to the second and third respondents. It was therefore decided that the tribunal’s decision had not been perverse.

If you require further information please contact us at enquiries@rtcoopers.com or Visit http://www.rtcoopers.com/practice_employment.php

© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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