ICAP Management Services Limited (IMSL) v. Dean Berry and others

An internal TUPE transfer is usually only created if businesses within a group are integrated following a share transfer. Under TUPE regulations, if employees refuse to transfer to the new business their employment contract can be terminated. In this case, Mr Berry, a CEO of one of the group companies and employed by IMSL, resigned to join a competitor and took 12 months compulsory garden leave. During the course of his leave, shares in the group parent company were sold to Tullet Prebon plc which was renamed TP ICAP plc. Mr Berry sought to be released from his garden leave obligations on the grounds that a TUPE transfer had taken place to which he objected. He started work with his new employer until ICAP obtained an injunction preventing him from breaking his contract. At the High Court, the judge held that no TUPE transfer had taken place not least as both Tullet Prebon and ICAP continued to operate as distinctly separate businesses (albeit under common ownership). When selling shares in group companies, it is useful to consider the TUPE implications before deciding whether or not to integrate divisions post share transfer.