TUPE transfers and joint employers

by Laurie Anstis on November 6, 2015

In Hyde v Layton, the employee was employed to carry out maintenance on homes by Martlet Homes Limited. Following a complicated series of transactions, he became employed to do the work on a joint and several basis by Marlet Homes Limited and several other companies within the same group, for whom he also carried out maintenance work.

The EAT had to decide whether this amounted to a TUPE transfer.

HHJ Eady QC held that “Martlet retains liability for the Claimants employment; that legal position remained unchanged. That Martlet’s liability is now on a joint and several basis with the other Respondents does not change the position relevant to the Claimant. The identity of his employer has not changed in a way that is legally relevant for TUPE purposes, whether taking the word of the Regulations on their face or reading them in the light of a purposive construction derived from EU law.”

Thus there was no TUPE transfer. He continued to be employed by Martlet, and the fact that there were now additional employers did not of itself give rise to a TUPE transfer.

Given the unusual circumstances of the case, HHJ Eady QC has given permission to appeal to the Court of Appeal.