Oakland v Wellswood (Yorkshire) Ltd

Oakland v Wellswood (Yorkshire) Ltd
Court	Court of Appeal
Citation(s)	[2009] IRLR 250, [2009] EWCA Civ 1094, [2010] IRLR 82
Keywords
Transfer of undertakings

Oakland v Wellswood (Yorkshire) Ltd is a UK labour law case concerning transfers of undertakings, and the job security rights of employees.

Facts

Mr Oakland, a general manager, claimed that he was unfairly dismissed from his job as general manager by Wellswood (Yorkshire) Ltd, which had recently bought the assets of the fruit and vegetable business from Wellswood Ltd. This company had gone into insolvency after three years of trading. The insolvency was a pre-packaged administration. Some employees, including Mr Oakland, were told that they would be taken on by the new company. But then Mr Oakland was dismissed. He claimed it was unfair.

The Tribunal held that Mr Oakland had not worked for the new Wellswood for sufficiently long to qualify for unfair dismissal. This depended on TUPER 2006 regulation 8(7).

Judgment

Employment Appeal Tribunal

Peter Clark J held that regulation 8(7) was triggered and TUPER 2006 regulations 4 and 7 did not apply since the intention of the administration was to return value to the creditors. It had been open to the Tribunal as a matter of fact that the prepack administration had been started with a view to liquidation of assets. He added that this was a finding consistent with the policy of aiming to promote a ‘rescue culture’ to ensure that potential purchasers of a failing business are ‘not putt off by the effects of TUPE protection’.^[1]

Mr Oakland argued that ERA 1996 s 218 (which the counsel just managed to find) should apply so the transfer of the business from Wellswood Ltd to Wellswood (Yorkshire) Ltd did not break continuity of employment.

Court of Appeal

Moses LJ held that clearly there was a transfer and therefore under ERA 1996 s 218(2)(b) there had been no break in continuity of employment. So the EAT was wrong.

Rix LJ and Smith LJ agreed.

Transfer of undertaking sources

Transfers of Undertakings Directive 2001/23/EC arts 3-4

Transfer of Undertakings (Protection of Emp) Regs 2006 r 7

Litster v Forth Dry Dock [1988] UKHL 10

Wilson v St Helens BC [1998] UKHL 37

TUD 2001 art 5 and TUPER 2006 r 4

Credit Suisse Ltd v Lister [1998] EWCA Civ 1551

University of Oxford v Humphreys [1999] EWCA Civ 3050

TUD 2001 arts 3(3) and TUPER 2006 r 5

Parkwood Leisure Ltd v Alemo-Herron (2013) C-426/11

TUD 2001 arts 1 and TUPER 2006 r 3

Spijkers v Gebroeders Benedik Abattoir CV (1986) C-24/85

Süzen v Zehnacker Gebaeudereingung GmbH (1997) C-13/95

Oy Liikenne Ab v Liskojärvi (2001) C-172/99

RCO Support Services v Unison [2002] EWCA Civ 464

TUD 2001 art 5 and TUPER 2006 r 8

SS for Trade and Industry v Slater [2007] IRLR 928 (EAT)

Oakland v Wellswood (Yorkshire) Ltd [2009] EWCA Civ 1094

UK labour law

Notes

↑ [2009] IRLR 250 (EAT), [20]

References

External links

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