TUPE - Affected Employees

[Thanks to Paul Smith of Broadway House Chambers for preparing this case summary]

If only part of a business is subject to a transfer, does the obligation to inform and consult under Regulation 13 of TUPE extend to employees working in the part which does not transfer?

Equally, does the obligation engage where there is an intended transfer that never materialises?

No and no, says the EAT in I Lab Facilities v Metcalfe and others.

The original employer was a company, part of which was sold and the remainder put into liquidation. The claimants were employed in the part which was ultimately closed down. They brought claims for breach of Regulation 13. The EAT held that the claimants were not "affected employees" within the meaning of reg 13(1).

An employee will not ordinarily be "affected" simply because the part of a business in which he is employed is made less viable by virtue of the sale of the other part. The law requires something more, such as the employee carrying out some element of work within the part of the business which is to be transferred. The methodology adopted by the EAT stands as a useful blueprint for practitioners approaching this issue.