McTear Contracts Ltd v Bennett and others; Mitie Property Services UK Ltd v Bennett and others UKEATS/0023/19/SS & UKEATS/0030/19/SS

Appeals against the ET’s decision concerning a relevant transfer pursuant to TUPE. Appeals allowed.

The Claimants before the ET were employees of a contractor that installed kitchens for a local authority. When the local authority re-tendered the contract, it split the contract into two 'Lots', which were awarded to two companies, the Appellants. Although each Appellant took on some of the Claimants on new terms and conditions, neither Appellant took on their contracts of employment; and the previous contractor maintained that the Claimants' contracts had transferred to the Appellants. Various Claimants brought claims for redundancy and unfair dismissal, amongst others, and a preliminary hearing in the ET found that there had been a service provision change amounting to a relevant transfer in terms of regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"). The Appellants appealed on a number of grounds, including in relation to the judgment of the CJEU in Iss Facility Services NV v Govaerts [2020] ICR 1115, that was published between the date of the ET's judgment and the hearing of the appeal.

The EAT held that the ET had correctly decided the issues according to the law applicable at the time of its judgment; however, the guidance in Kimberley Group Housing v Hambley [2008] IRLR 682 and Duncan Web (Offset) Maidstone Limited v Cooper [1995] IRLR 633 now needed to be read subject to Govaerts. Accordingly, the case would be remitted to the same ET for consideration in the light of Govaerts.

Published: 17/03/2021 15:32

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