[2008] EWCA Civ 381, Court of Appeal on 17th April 2008, reported at [2009] ICR 511 (also at [2008] IRLR 515)
NOTES
Dynamex Friction Ltd & Ferotec Realty v Amicus & Ors, Court of Appeal on 17th April 2008, reported at [2009] ICR 511 (also at [2008] IRLR 515).
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Representation:
Mr J. Hand Q.C. and Mr E.P. Morgan instructed by Gamlins for Ferotec Realty
Mr P. Ralls Q.C and Mr A. Allen instructed by Rowley Ashworth for Amicus and others
Miss A. Hewitt instructed by Treasury Solicitors for the Secretary of State for Trade and Industry
Authority for the propositions that:- where the administrator of a company dismisses employees for sound economic reasons which are not related to the transfer of the employing business, the fact that behind the scenes the owners of the employing business deliberately kept secret a plan that the administrator would so dismiss employees, thus making it possible for the owners to arrange a transfer of the employing business to other companies they owned without liability to the dismissed employees, does not scupper that plan.
in technical language: the effect of TUPE regs 2006, reg 4(3) is that employees dismissed before a business transfer for a reason connected with the transfer which is an economic, technical or organisational reason entailing changes in the workforce do not have the normal protections provided by that regulation and in deciding what the reason for the dismissal was only the thought process of the person making the dismissals, and why the decision to dismiss was reached, should be taken into account.
For relevant general notes see Transfer of business or undertaking/economic, technical or organisational defence .
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prepared June 2008