Who transfers?

Case 3: The facts

Computer software consultant Mr Onwuka was employed in the software quality management (SQM) division of Spherion UK. When the SQM practice was transferred to another company, RelQ, all employees assigned to that part of the business transferred.

At the time of the transfer, Onwuka was not assigned to any project; he had objected to working on one particular project because he did not want to work with the team leader, and he had some ongoing health problems. Spherion said this meant that he had not transferred.

The ruling

The Employment Appeal Tribunal (EAT) found that RelQ had no influence over which employees transferred; as far as it was concerned, Onwuka was working for another part of Spherion at the date of the transfer and was no longer assigned to SQM. There was therefore no attempt, the EAT held, to avoid the TUPE regulations. It said the tribunal had been entitled to find on the facts that Onwuka was not employed in the part that transferred at the time of the transfer, and therefore had remained employed by Spherion.