TUPE: Temporary Cessation of Work

The decision in Mustafa & Another v Trek Highways Services Limited & Others has confirmed that a temporary cessation of work does not preclude a TUPE business transfer or service provision change.

Facts

Trek Highways Services Limited was the sub-contractor for traffic management in regards to road maintenance services by Amey Services. In March 2013 a dispute arose between Amey and Trek and as a result there was a Temporary Cessation of Work by Trek and the staff were sent home. Upon settlement of this dispute Trek’s sub-contract was terminated and its employees transferred to Amey.

Upon reporting for work at Amey’s premises they were turned away by the new sub-contractor, Ringway. It was Ringway’s position that as there had been a termination of the sub-contract between Amey and Trek and accordingly TUPE did not apply.

The Decision

The decision by the Employment Tribunal upheld Ringway’s position and determined there had not been a relevant transfer or subsequent business transfer. The Employment Tribunal also concluded that the claimants were not employed immediately before the transfer date and therefore the conditions for a transfer had not been met. The Claimant appealed to the EAT who found that the activity in the sub-contract between Amey and Trek had not ceased and instead it has been suspended.

The EAT confirmed there is not requirement for the grouping of employees to be working immediately before the service provision change in order to be an organised grouping.

Employers will need to be cautious in placing too much reliance on a temporary cessation. Temporary cessation should only be one factor taken into account in determining whether there was a relevant transfer.

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com.

Read more blogs from Blake-Turner Solicitors (Fenchurch St Lawyers).