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Supreme Court to decide on scope of TUPE

22 June 2010

The Supreme Court is to rule on the extent to which council workers who become the employees of private companies when services are outsourced are protected by TUPE.

Public sector union UNISON was granted leave to appeal yesterday against the Court of Appeal’s unanimous ruling in Parkwood Leisure v Alemo-Herron and others [2010] EWCA Civ 24.

The Court of Appeal held that staff who worked for Lewisham Council’s leisure services department after it was outsourced could no longer benefit from a national pay agreement (see Solicitors Journal 9 February 2010).

Shantha David, solicitor at UNISON, acted for the workers. She said at least a dozen TUPE cases were likely to be stayed pending the decision of the Supreme Court.

David said she hoped the Supreme Court would hear the case before the end of the year, but it had taken four months to get the application for leave granted by Lords Phillip, Mance and Collins.

At the Court of Appeal, Lord Justice Rimer said that the workers’ claim that TUPE protected them would have been “unanswerable” had it not been for the decision of the European Court of Justice in Werhof v Freeway Traffic Systems [2006] IRLR 400.

David said it was not necessary for the court to rely on Werhof because the Acquired Rights Directive (directive 2001/23/EC) allowed some national governments to be more generous than others to their workers.

She said that if the Court of Appeal ruling stood, it would have had “wide repercussions” and could have marked the start of the unravelling of TUPE.

“Where would this end?” David asked. “Are there other terms which will not be transferred? What would happen to staff who fell into the hands of unreasonable employers?”

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