More than one entity

Case 5: The facts

Southwark Council had previously entered into a contract for services with a contractor. When a decision was taken to put the contract out for tender, the council decided that it would split the work into two separate areas and tender for two separate contracts.

The successful contractor for one area refused to take on any of the previous employees, on the basis that none was working in the area assigned to the contractor prior to the new contract. The issue was whether the workers should have transferred to the new contractor.

The ruling

The Court of Appeal ruled that, as long as there was an identifiable entity before the transfer, the fact that afterwards there were two separate entities did not prevent there being a TUPE transfer.

The court also held that an employee off on long-term sick leave at the time of the transfer could still be held to have been transferred under TUPE, so long as that employee was identified as being part of the entity that was being transferred.

Fairhurst Ward Abbots v Botes Building A1/2003/0892