Emanation of the state

Case 5: The facts

This case was taken by two unions in Scotland over an employer's failure to consult in a TUPE transfer. The issue was whether they could directly refer to the employer's failure to comply with a European Union directive. To do this, they had to show that the employer was an "emanation" of the state - in other words, that it was as if the state itself had failed to comply with the requirement to consult.

The ruling

The EAT in Scotland held that an emanation of the state is one that:

* exists pursuant to a measure adopted by the state;

* provides a public service; and

* has special powers (by statute).

In this case, the EAT held that it had considerable doubts that the contractor was carrying out anything other than a normal commercial operation or had any special powers. It was therefore not an emanation of the state.

T&G Scotland v Serco EAT/0067/03