Search

How can we help?

Icon

The importance of understanding the economic entity in a TUPE situation

For there to be a business transfer under TUPE there must be an ‘economic entity’ that retains its identity post-transfer.

To assess what amounts to an economic entity, the nature of the business activities needs to be understood.  In a labour-intensive business, such as cleaning, the transfer of the employees will be vital for TUPE to apply, however, for a business more heavily reliant on other assets such as land or equipment, the transfer of these will be the important factors.  This is always a question of fact for the Tribunal.

This point arose in the ECJ case of Securitas v ICTS Portugal.  In this case, Securitas took over security services from ICTS.  ICTS engaged security guards who were responsible for monitoring the entry and exit of persons and goods, by means of video surveillance devices. ICTS also provided them with uniforms and radio equipment.  Securitas took on the equipment involved in the work but refused to take on the employees and the question arose as to whether this prevented TUPE from applying.

Louise Keenan

Associate

View profile

+44 118 960 4614

In a labour-intensive business, such as cleaning, the transfer of the employees will be vital for TUPE to apply, however, for a business more heavily reliant on other assets such as land or equipment, the transfer of these will be the important factors.

The ECJ, deciding the point under Portugal’s Labour Code, reiterated the above principles and returned the case to the court to determine the matter on the facts.  It is worth noting, that one of the key questions for the ECJ in this case was whether the transfer of a service such as this could amount to a transfer of an undertaking, a point not in contention under English law by virtue of service provision changes being expressly covered under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

About this article

Disclaimer
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.

Louise Keenan

Associate

View profile

+44 118 960 4614

About this article

Read, listen and watch our latest insights

Pub
  • 22 September 2023
  • Employment

Talking Employment Law: New family friendly rights

In this first podcast in the ‘Talking Employment Law’ series, Lucy Densham Brown and Rebecca Dowle, members of the employment team summarise some of the big new family-friendly Bills that are working their way through parliament.

art
  • 20 September 2023
  • Commercial Real Estate

Commercial buyers beware of residential Stamp Duty Land Tax

This article discusses a recent case in which a property buyer calculated the Stamp Duty Land Tax due on the purchase at a lower rate, due to the mixed-use purpose of the property.

art
  • 19 September 2023
  • Privacy and Data Protection

Organisations’ use of social media: Data protection

Social media applications (or commonly known as ‘apps’) are being developed all the time and we are constantly being introduced to new social media platforms, some of which take almost no time to gain huge popularity.

art
  • 14 September 2023
  • Immigration

Entrepreneurial Dreams: What is the Innovator Founder Visa?

In an era defined by innovation and entrepreneurship, the United Kingdom has made a substantial effort towards fostering its reputation as a global hub for start-ups and innovators. The introduction of the UK’s ‘Innovator Founder’ route has marked a pivotal moment in the country’s immigration policy.

art
  • 11 September 2023
  • Corporate and M&A

Changes to the tax treatment of Employee Ownership Trusts

The government published a consultation on 18 July 2023 seeking the public’s views on its proposals to reform the tax treatment of Employee Ownership Trusts and Employee Benefit Trusts. Parties are invited to express their opinions via email via the government website until the consultation closes on 25 September 2023.

art
  • 08 September 2023
  • Immigration

Navigating the Latest Immigration Rules for Overstayers in the UK: A Comprehensive Guide for 2023

Staying beyond the expiration of your UK visa is a serious matter that, in most cases, can result in significant and long-lasting repercussions.