Employment Flash - 20th November 2009
Is it still TUPE related 2 years after the transfer? It all depends on the facts, but "yes, it can be"...
London Metropolitan University v Sackur [2006] UKEAT 0286 06 ZT
2006 is not a misprint. This may be a first time on general release for this judgment or it may be a re-release, but in any event it is timely, though it is certainly referred to in the IDS handbook on Transfer of Undertakings.
London Guildhall University and the University of North London merged in 2002. In July 2002 the employers represented to the Unions that the default position for contracts of employment was that the LGU contract would apply. This in fact was a blip in their thinking; they intended the UNL terms to apply. Within a few months their stance had changed so that the UNL contracts were to be preferred. When those terms were imposed about one third of the staff treated the situation as a dismissal in breach of TUPE.
The EAT upheld the ET's decision that there had been a breach of TUPE by LMU. The further away a transfer is from a dismissal, the less likely it is that it will be found to be connected to it. This is always, though, a matter of fact and degree for the ET. What has to be determined is whether there is a connection between the transfer and the dismissal; and whether the connection was the principal reason between the dismissal and the transfer. The intention was to place all staff on UNL contracts. When that was implemented 2 years after the transfer it had not lost its connection or relationship to the merger.
A similar line was taken by the EAT in Taylor v Connex South Eastern Ltd 1243/99, also 2 years.
What counts is not the simple elapse of time but waht has occurred in that time to sever the connection between subsequent changes to the employment contract and the original transfer. The further in time away you are from the transfer the more likely it becomes that some non-transfer related factor/reason will arise brought on by events themselves unrelated to the transfer.
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