web updater summary
3 June 2008
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emplaw.co.uk employment law web updater summary 3 June 2008 |
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Summary Information : Capita Health Solutions v (1) British Broadcasting Corporation (2) McLean - if employment continued after TUPE transfer there cannot have been a valid objection, under TUPE, to that transfer - EAT 1.5.08 BBC transferred its occupational health (OH) department to Capita as of 1 April 2006. OH nurse Mrs MacLean objected to being transferred. She resigned on 31 March 2006, stating that due to her professional commitments she would work a "period of secondment" with Capita until she actually left on 12 May. BBC retained nothing of its OH department and there was no role that Mrs MacLean could have returned to with the BBC at the end of any "secondment". However BBC and Capita agreed to the arrangement and BBC paid Mrs MacLean for what it saw as her working out her notice period. An employment tribunal held that even so her employment had transferred under TUPE - that decision was appealed. In the EAT Lady Smith noted that employees are plainly entitled to object to being transferred to the employment of another employer - that accords with common law, the underlying intentions of the relevant Directives and TUPE. However, whether the employee has "objected" is a question of fact to be decided objectively in all the circumstances. TUPE 1981 Reg 5 (now TUPE 2006 Reg 4) states that such objection will prevent a transfer occurring and end the contract of employment, and it makes no provision allowing employees to work out their notice - so if she had successfully "objected" Mrs MacLean could not have continued as BBC's employee after 1 April 2006. On the facts Mrs MacLean did not object to transfer - she simply insisted that she would only transfer for a limited period of time. Therefore there was a TUPE transfer of her contract of employment to Capita for 6 weeks. |