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TUPE - Ineffective objection to transfer

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Thanks to for permission to use their case summary

The BBC transferred its occupational health (OH) department to Capita as of 1 April 2006. The Claimant objected to being transferred. She resigned on 31 March 2006, stating that due to her professional commitments she would work a "period of secondment" with Capita until she actually left on 12 May. However, there was no role that the Claimant could have returned to with the BBC at the end of any "secondment". The BBC paid Mrs MacLean for what it saw as her working out her notice period.

An employment tribunal held that even so her employment had transferred under TUPE - that decision was appealed.

In the EAT Lady Smith noted that employees are plainly entitled to object to being transferred to the employment of another employer - that accords with common law, the underlying intentions of the relevant Directives and TUPE. However, whether the employee has "objected" is a question of fact to be decided objectively in all the circumstances. TUPE 1981 Reg 5 (now TUPE 2006 Reg 4) states that such objection will prevent a transfer occurring and end the contract of employment, and it makes no provision allowing employees to work out their notice - so if she had successfully "objected" Mrs MacLean could not have continued as BBC's employee after 1 April 2006. On the facts Mrs MacLean did not object to transfer - she simply insisted that she would only transfer for a limited period of time. Therefore there was a TUPE transfer of her contract of employment to Capita for 6 weeks.

Capital Health Solutions v McLean