The Court of Appeal has confirmed that an employee will not cease to be "assigned other than on a temporary basis" to a transferring business simply because at the time of transfer he has handed in his notice and is doing only a small amount of work from home during his notice period. Such an employee can still transfer under TUPE. The Court also confirmed that a failure to inform and consult does not prevent an employee transferring, even if that denies the employee the opportunity to object pre-transfer. (Marcroft v Heartland, CA)
Transferees buying pre-pack insolvent businesses should also note that they will inherit liability for unfair dismissal basic awards if they dismiss post-transfer. The EAT has ruled that the Secretary of State will only pick up certain liabilities (including unfair dismissal basic awards and notice pay) if they are incurred before the transfer, so it will be important to consider the timing of dismissals. (Pressure Coolers v Molloy, EAT)
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