Sean Pong Tyres Limited v Barry Moore (debarred)
[2024] EAT 1
Jagruti Rajput v Commerzbank AG & Anor
29 August 2023
[2023] EAT 116
Employment Appeal Tribunal
A company sold its business in parts, some parts were in the UK and some in Germany. A court decided the date the business was fully transferred should include *all* parts of the business, not just the UK one, and sent the case back to a different judge to decide.
Key Facts
- •Jagruti Rajput (appellant) worked for Commerzbank AG (first respondent) in their Equity Markets and Commodities (EMC) division.
- •Commerzbank sold its EMC business to Société Générale (second respondent).
- •The sale involved a series of transactions across multiple countries, including the UK and Germany.
- •Rajput claims victimisation and discrimination by Commerzbank, leading to dismissal.
- •The Employment Tribunal initially decided the TUPE transfer date was October 1, 2019.
- •The appeal focused on whether the Tribunal correctly determined the TUPE transfer date.
Legal Principles
The date of a TUPE transfer is the date on which responsibility as employer for carrying on the business moves from the transferor to the transferee.
Celtec Ltd v. Astley [2005] ICR 1409
TUPE Regulations apply to a business situated in the UK before the transfer, even if employees work abroad.
TUPE Regulations 2006, Regulation 3(4)(c)
A TUPE transfer may be effected by a series of transactions; the date isn't necessarily the last transaction.
TUPE Regulations 2006, Regulation 3(6)(a)
Outcomes
The appeal was dismissed in part and allowed in part.
The Tribunal misdirected itself by excluding the German-based part of the EMC business (Flow) from its consideration when determining the transfer date. The Court of Appeal held that the entire EMC business, including its German component, should have been considered.
The case was remitted to a different Employment Judge for reconsideration.
The Court of Appeal felt it inappropriate for them to determine the transfer date based on the evidence presented. A new judge would ensure a fresh perspective and detailed consideration of all components of the transferred business.