Ponticelli UK Ltd v Gallagher [2022] EAT 140

Appeal against a finding that the Claimant was entitled to participate in a scheme equivalent to the former Share Incentive Plan which had operated prior to the Claimant's transfer under TUPE. Appeal dismissed.

The Claimant in the original ET proceedings had transferred under TUPE to the Respondent. Prior to the transfer he had been a member of a Share Incentive Plan operated by the transferor which he had joined in August 2018 pursuant to an agreement amongst the Claimant, the transferor and the plan trustees. The Respondent refused to provide an equivalent scheme so the Claimant brought proceedings before the ET in terms of sections 11 and 12 of the Employment Rights Act, 1996. The ET upheld his claims and found that he was entitled, after the transfer, to participate in a scheme of substantial equivalence to that operated by the transferor. The Respondent appealed contending that the obligations created when the Respondent joined the transferor’s scheme did not arise either “under” the contract of employment or “in connection with” that contract. Accordingly, Regulation 4(2)(a) of TUPE did not apply.

The EAT dismissed the appeal. Even if the obligations created by the August 2018 Partnership Share Agreement did not arise “under” the contract of employment, they plainly arose “in connection with” that contract for the purposes of Regulation 4(2)(a) of TUPE.


Published: 12/10/2022 09:59

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