The Employment Appeal Tribunal (EAT) has considered whether the obligation to keep wage records remains with the transferor employer following a TUPE transfer.

Mears Homecare Limited v Bradburn and others, UKEAT/0170/18

Facts

The claimants had transferred to a new employer under a TUPE transfer. They subsequently served notices on the respondent, the transferor employer, to produce pay records under the provisions of the National Minimum Wage Act 1998 (NMWA). The respondent failed to do so within the required 14 days and was ordered to pay each claimant £600 by an employment tribunal, on the basis that it was the employer at the relevant time. The respondent appealed to the EAT.

EAT decision

The EAT upheld the appeal, finding that the transferor was not the appropriate recipient of the notices as the transferee was the employer for the purposes of the NMWA. The claimants’ employment had not terminated but it had transferred as a result of TUPE, meaning that the transferee employer had stepped into the shoes of the transferor regarding the claimants’ contracts of employment. The obligation to keep and produce NMW records transferred with the contracts of employment.

Consequences

The EAT acknowledged that the transfer of record-keeping obligations could present some practical difficulties, and suggested that the transferring of pay records is something that should be provided for in the commercial arrangements between the parties. Transferee employers should ensure that there is a mechanism in place for the pay records to be transferred at the time of a TUPE transfer, with suitable contractual penalties in the event that the transferor fails to provide them.

This article is from the August 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals.