October 14, 2010
The Employment Appeal Tribunal (EAT) has supported a case brought by an individual whose employment was terminated when his place of work changed hands.
The EAT stated that any temporary closure of a business should not necessarily prevent a Transfer of Undertakings (Protection of Employment) Regulations (TUPE) taking place.
The case concerned involved a bar at the Caledon Community Centre where the Manager had been employed for over two and a half years; the individual was the only employee and also the licensee for the premises.
After losing its licence certificate, the social club conceded its licence to London Colney Parish Council, who would be the new occupiers of the space. The Manager was dismissed from his position and the bar was reopened 2 months later under a new licensee, casual bar staff were used on a rota basis to cover the opening hours.
The claimant brought a case to the employment tribunal, he believed the termination of his employment was unfair and was of the opinion that his employment should have transferred under TUPE to London Colney Parish Council. His case was overruled and the tribunal decided that TUPE was not applicable in this instance as the bar did not retain it’s original identity during the transfer.
However, the Employment Appeal Tribunal (EAT) contested this decision. After re-examining the evidence it was clear that London Colney Parish Council always intended to obtain a new premises licence and re-open the bar. As the bar had not stopped running completely and only ever suspended trading, the EAT ruled against the defendant.
Employment Law solicitor Tina Maxey commented: “This case serves as an example of how careful employers have to be when they are dealing with the possible transfer of a business. A business that closes temporarily and then re-opens with new staff could potentially still amount to a TUPE transfer, meaning that any staff who are dismissed when it closes may be found to have been unfairly dismissed.”
Employment solicitors are here to fight your corner if you have been in a similar situation.
