Could employees who had been laid off before a service provision change took place still claim the protection of TUPE?
Yes they can, in certain circumstances, says the EAT in a recent decision.
In this case a painting and decorating contract was carried out in several stages. There was a change of contractor between stages 8 and 9, and the employees in question wanted to rely on TUPE to claim employment with the new, stage 9, contractor.
The obstacle, from the employee’s point of view, was that they had been temporarily laid off during November and December, as phase 8 came to an end, and phase 9 was only due to recommence in January.
The Employment Appeal Tribunal held that this should not be an impediment to TUPE applying to them. It held that there was nothing in the TUPE Regulations which required the employees in question actually to be engaged on the job immediately prior to the transfer. They also relied on case law which had previously decided that temporary closure of the business was not a bar to this.
This case effectively closes of a potential loophole which would have allowed employers to circumvent TUPE by temporarily laying off their staff just before a transfer took place.