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Can employment transfer from one company to another without the employee`s consent?

24 April 2012 #Employment


We all know that where TUPE applies, employment contracts automatically transfer from one employer to another, subject to the employee’s right to object.  However, where TUPE is not relevant, old common law principles apply:  the employment of an employee cannot be transferred from one employer to another without the employee’s consent.  This principle was confirmed in the EAT case of Gabriel v Peninsula Business Services.

In this case, a marketing consultant, Ms Gabriel, remained an employee of business services company Peninsula as she had not agreed to her contract transferring to the company it had set up to administer its `Taxwise` department.  It was not argued that there had been a TUPE transfer.   As a result she could bring claims of discrimination against both companies.

So where TUPE does not apply, you cannot simply tell an employee that he or she is transferred and employed by someone else although there may be consent contained in contracts of employment. This will be important particularly in intra-group transfers, where it may be beneficial for an employer to transfer the employment of one of its employees unilaterally.

For further information on when TUPE does and doesn’t apply, please see employmentbuddy’s TUPE factsheet. 

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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