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TUPE: Five month gap does not prevent transfer

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Did a five month suspension of an undertaking's activities preclude a TUPE transfer?

No, held the CJEU in Colino Siguenza v Ayuntamiento de Valladolid.

The Claimant was employed as a music teacher at a music school in Spain. The school's management had been assigned by the local authority to a contractor. Due to a dispute, on 27th March 2013 the contractor collectively dismissed all the school's staff. On around 1st April 2013, two months before the academic year ended, the contractor ceased its activities. In August 2013, following a tendering process for the new academic year, the local authority assigned the school's management to a new contractor which started activities in early September 2013. The new contractor did not engage any of the staff, including the Claimant, that had been dismissed on 27th March 2013.

The CJEU highlighted that although the school's activities had ceased for five months, three months of that period included school holidays. The CJEU concluded that the temporary suspension of activities and the new contractor's failure to engage the dismissed employees could not preclude the possibility of a TUPE transfer. Whether there had been such a transfer was for the referring court to decide.

Thanks to David Campion of Atlantic Chambers for preparing this case summary.