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.