Gary Lewis v Dow Silicones UK Limited
[2024] EAT 51
Mansfield Care Limited v Leah Newman & Ors
30 July 2024
[2024] EAT 128
Employment Appeal Tribunal
A nursing home changed owners. A court initially said the new owner should have consulted about job losses and should have kept the old staff. The appeals court disagreed, saying there wasn't enough proof of job losses, and that the court was right to say some part-time workers were actually employees. The part about whether the business transfer was legal needs to be looked at again.
Key Facts
- •Mansfield Care Limited (second respondent) acquired the Adamwood Nursing Home's residents and staff from Rollandene Limited (first respondent).
- •Adamwood's staff included 'employees' and 'bank staff'.
- •The Employment Tribunal (ET) found a TUPE transfer, a failure to consult on redundancies (section 188 TULRCA), and that 'bank staff' were employees (section 230(1) ERA).
- •Both respondents appealed.
Legal Principles
Transfer of undertaking (TUPE): Regulation 3(1)(a) (business transfer) requires a transfer of an economic entity retaining its identity; Regulation 3(1)(b) (service provision change) focuses on activities ceasing to be carried out by one person and being carried out by another.
Transfer of Undertakings (Protection of Employment) Regulations 2006
Consultation on collective redundancies (section 188 TULRCA): Obligation arises only when a crucial operational decision is taken, and the employer contemplates collective redundancies.
Trade Union and Labour Relations (Consolidation) Act 1992
Employment status (section 230(1) ERA): Determined by an objective assessment of all relevant facts, including the existence of an irreducible minimum of obligation on both sides (contract of service).
Employment Rights Act 1996
Outcomes
Appeals regarding TUPE and section 188 TULRCA allowed; appeal regarding employment status dismissed.
ET erred in finding a TUPE transfer and breach of section 188 TULRCA; its reasoning did not support its conclusions. The ET permissibly found 'bank staff' were employees.
TUPE transfer question remitted for reconsideration.
ET's findings regarding the TUPE transfer were flawed, but a finding of no transfer wasn't inevitable.