Where transferee is the same as the transferor, after the transfer has happened, it will not be a relevant transfer

The Claimant, Layton, was employed by Martlet Homes Limited primarily as a decorator. On 1st January 2008 Martlet joined with several other companied to form Hyde Housing Association Limited (HHA). Although Martlet was now in the Hyde Group, the Claimant’s employment still remained with Martlet, as the Hyde Group was not a separate legal entity. As Hyde and Martlet engaged in a stock management agreement, Hyde took over the HR and payroll departments of Martlet which resulted in HHA being assigned as employer on the Claimant’s payslips from 1st August 2008 onwards, and later on his P60 in April 2009.

The Hyde Group launched a project of restructuring. Under the project, Hyde began a restructure of the property services area where the Claimant was employed. On 1st August 2013, he was offered the Internal Repairs Specialist role under a new contract which, among other changes, listed the Hyde Group as his employer, which meant that all the members of the Hyde Group, including his previous employer – Martlet – would act as his employers at the same time. The Claimant was not happy with the new terms and conditions and did not sign the contract, but he carried on doing the same work he did before the proposed change. Also, his supervisor remained the same, he wore the same uniform and used the same vehicles. On 21st August he was issued a letter which informed him of the termination of his contract, and he accepted re-engagement and reluctantly signed the new contract.

The Employment Tribunal (ET) considered two issues: a) whether a relevant TUPE transfer occurs when the transferee is more than one entity; and b) when the transferor remains one of the transferees (like Martlet in this case). The ET held that a relevant TUPE transfer does take place in those conditions.

At the EAT, the Respondents argued that the ET should have reached the opposite conclusion – that a TUPE transfer does not occur. The EAT ruled in the employer’s favour and found that when the transferor remains liable for the Claimant’s employment, a TUPE transfer has not taken place.