We touched on the Sodexo case last month, but we think it is important enough for a further mention. Although a number of technical equal pay points were involved, it is a powerful illustration of the far-reaching effect of TUPE, which is to transfer (with limited exceptions) all the liabilities associated with transferring staff to the new employer, even if these liabilities are latent.
In Sodexo, the new employer was potentially liable for inequalities in the pay structure of an NHS trust, despite the fact that a group of female cleaners formerly employed by the trust did not make equal pay claims until five years after the transfer and, to make the claim, were relying on male comparators in the employment of the trust who had not been transferred to Sodexo. Unless the Employment Appeal Tribunal's decision is reversed on appeal, this means that Sodexo will have to defend a pay structure it did not devise involving some workers whom it never employed. It may be some consolation that, due to a ruling on time limits under the Equal Pay Act, it will only be responsible for unjustifiable pay equalities that persisted after the TUPE transfer.
For the full decision (Sodexo v Gutridge) click here.