Ed Williams and Catriona Stirling appeared for the successful appellants in the EAT in the ground-breaking TUPE case of Hyde Housing Association Ltd and Others v Layton, in which judgment has now been handed down.
The ET had held that, in circumstances where A’s employment with B transferred to joint and several employment with B and other employers, there was a relevant transfer for the purposes of Regulation 3(1)(a) of TUPE.
Upholding the employers’ appeal, the EAT held that, although Regulation 3(1)(a) did not preclude a relevant transfer to multiple transferees, where the original transferor remained liable for the Claimant’s employment, the situation would not fall under the protection of TUPE.
That was so as a matter of construction. It was also consistent with the protective purpose of the Acquired Rights Directive – in particular the purpose of ensuring that the rights of employees are safeguarded in the event of a change of employer. That protection could not extend to those cases where the employee’s legal position vis-à-vis the employer was unchanged.
This case is likely to have far-reaching implications in areas where employees are commonly jointly and severally employed by a number of employees, such as in partnerships and in the housing association sector.