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October 2010 Updates

TUPE - temporary cessation of undertaking

The Employment Appeal Tribunal has decided, in Wood v London Colney Parish Council and Hewitsons, that a temporary gap in activity will not prevent a transfer of an undertaking.

In this case, the Claimant worked as a bar steward for the First Respondent, a social club. He was dismissed after the club handed back its lease on the bar to the Second Respondent. The club then gave up its premises licence. The Second Respondent took over the bar and later got its own premises licence, running the bar with its own people.

The Employment Appeal Tribunal said that the bar was only temporarily closed whilst it did not have a premises licence and, as the business did not stop completely, there was still a relevant transfer for the purposes of TUPE.

Continuity of employment

The Employment Appeal Tribunal has decided, in Hussain v Acorn Independent College, that a teacher's continuity of employment is not broken by the summer holidays.

The Claimant, Mr Hussain, worked from 25 April 2008 to 8 July 2008 as a cover teacher at the College. He was covering for another teacher who had fallen ill. The teacher who had been ill then resigned on 8 July 2008 and Mr Hussain was offered permanent employment from 5 September 2008. He was later dismissed on 12 June 2009.

The issue was whether there was continuity of employment of both contracts because of the temporary break in work during the summer holidays.

The Employment Appeal Tribunal held that, if the only reason that the first contract ended was the temporary gap in work during the summer holidays, then the two contracts counted as one period of employment. The gap was short, so the Claimant had fulfilled both contracts in sequence for more than 12 months.

Compulsory retirement and age discrimination

The European Court of Justice has decided, in Rosenbladt v Oellerking Gebaudereinigungsges mBh, that, whilst a compulsory retirement age of 65 in a contract of employment may seem discriminatory on the grounds of age, it is justified if:

  • The contract was negotiated with a union.
  • The employee will receive a pension so that they still have an income from age 65.
  • Compulsory retirement has been widely used in the country for a long time without having any adverse effect on the levels of employment.

This decision is likely to affect employers who try to justify a compulsory retirement age after the default retirement age is abolished in October 2011.

TUPE ? failure to inform and consult

The Employment Appeal Tribunal has decided, in Todd v Care Concern, that an award of 13 weeks' pay should not be the starting point for failure to inform and consult if the employer has done something (but not everything) to comply with its legal obligations.

In this case, the employer gave some information to the transferring employees, but not enough. It failed to elect employee representatives. The Employment Appeal Tribunal decided that the 13 week award should only be the starting point if there has been a complete failure to comply with the employer's information and consultation obligations.


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SRA number 404293