Identifying transferred staff

Case 2: The facts

Clifford Williams was employed by an engineering company. The engineering design contract on which he was working came to an end, and he moved to work on the administration of a cleaning contract.

Some months later, the cleaning contract was put out to tender, and Williams's employer did not win it. The employer was declared insolvent, and Williams was not offered employment with the new contractor. He took a claim of unfair dismissal against the new contractor.

The issue was whether his work was identified with the transfer. Under TUPE, where part of a business transfers to a new owner, only those employees assigned to that part transfer with it.

The ruling

The Employment Appeal Tribunal (EAT) held that there is no formula to determine whether an employee was assigned to a part of the business that transferred - the decision must be based on the particular facts of the case.

But it added that, just because an employee was involved in the part of the business that transferred, this does not mean that s/he was assigned to it.

Williams had other responsibilities relating to parts of the business that did not transfer, and was based at another location. Therefore the EAT ruled that he had not transferred to the new employer, and had not been unfairly dismissed.

Williams v Advance Cleaning Services UKEAT/0838/04