The Claimant worked for the first Respondent, Commerzbank, from 2012 until 2020, when she alleges she was dismissed. Throughout the period from 2017 to dismissal when the Claimant was involved in proceedings against the first Respondent, the first Respondent was preparing to sell the business to the second Respondent, SocGen. This was a very complex process which involved transferring batches and sub-batches of the business at different times. The Respondents alleged that the transfer, as far as TUPE is concerned, took place on October 2019. The Claimant alleged it did not take place until May 2020 when the final batch of the business had been transferred (the date of the transfer being important to her claim). The ET agreed that the transfer took place in October 2019 and the Claimant appealed.

The EAT allowed the appeal in part. The ET had correctly decided that the date of transfer was not necessarily the date of the last transaction in the series. Nor had the ET materially erred in asking itself the question when the “essential nature” of the business was first carried on by the second Respondent. However, the ET had misdirected itself by excluding from its consideration a substantial part of the first Respondent’s business, accounting for about two fifths of the purchase price, on the basis that it was geographically located outside the UK, in Germany.