In August we reported that the Court of Appeal had expressed doubts as to whether the EAT in Oakland v Wellswood was right to suggest that pre-pack administrations could be insolvencies "begun with a view to liquidation" (so that TUPE does not apply to transfer employees). Uncertainty remained as the comments were obiter - the Court decided that an employee taken on by the buyer of the insolvent business had continuity of service without having to rely on TUPE.
At that time the written judgment was not available. It has now been published, but says no more than that there are "strong grounds" for thinking the EAT was wrong. In these circumstances, the prudent course will be for buyers to assume that TUPE will apply to transfer employees on a pre-pack (although, on the upside, there is still more flexibility to change employment terms than on a solvent sale). (Oakland v Wellswood, CA)