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Employment transferred under TUPE

Mr Marcroft, was employed by PMI Health Group Ltd (“PMI”) in the commercial insurance department. He resigned and his notice expired on 26 October 2009. The commercial insurance business was transferred as a going concern to Heartland (Midland) Ltd on 2 October 2009. After the termination of his employment, Mr Marcroft went to work for a rival company. Heartland argued that Mr Marcroft’s employment transferred under TUPE and therefore restrictive covenants applied. Mr Marcroft defended the case by raising two very unique arguments.

Firstly, he contended that he was no longer assigned to the undertaking transferred because he had previously given in his notice and was put on garden leave when the transfer took place. As Regulation 2(1) of TUPE defines “assigned” as meaning “assigned other than on a temporary basis”, he argued that by handing in his notice his assignment in commercial insurance was temporary. The Court of Appeal disagreed, holding that it cannot be right that an employee is automatically assigned on a temporary basis, thereby losing the protection of TUPE, simply as a result of handing in his notice.

Secondly, Mr Marcroft argued that there was no valid transfer because he was not provided by PMI with information in writing about the transfer, which would have enabled him to exercise his right to object. The Court of Appeal also rejected this argument. Regulation 13 of TUPE requires that the representatives of the affected workers be provided with certain information. This does not, however, include the right to object and does not impose an obligation to provide the information to Mr Marcroft personally.

Marcroft v Heartland (Midlands) Ltd [2011] IRLR 599

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