Veale Wasbrough Vizards

UK 200 2013 position: 98

TUPE — employment tribunal’s discretion to identify activity

By Michael Halsey

In Qlog Ltd v O’Brien, the Employment Appeal Tribunal (EAT) has confirmed the wide discretion employment tribunals have to determine whether an activity was fundamentally the same after a TUPE transfer as it was before.

In this case, the tribunal was justified in placing significant weight on the terms of the contractual documents between the parties.

Ribble manufactures cardboard packaging and engages a contractor to deliver the products to customers. Between 2008 and 2011, the delivery contract was held by McCarthy Haulage. McCarthy employed staff who worked in Ribble’s factory and drivers to deliver to customers. McCarthy’s employees in the factory loaded the delivery vehicles…

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