Although a share sale does not in itself amount to a TUPE transfer, there may be a variety of reasons why an employee wants to assert that a TUPE transfer has in fact taken place on or after such a sale. In Guvera Ltd v Butler, the finding that there had been a TUPE transfer meant that employees could pursue claims against the purchaser after their employer went into administration.
The employees worked for Blinkbox Music Ltd. The shares in Blinkbox were sold to a subsidiary of Guvera Ltd in January 2015. Until the end of April 2015 the business continued to be operated by Blinkbox in the normal way. However, by 11 May it became clear that insolvency was in prospect and the sole director of Blinkbox resigned. The following day Guvera's management team assumed day to day control of the business that went beyond the mere exercise of ordinary supervision of a subsidiary by a parent. Staff were told a few days later that they would be reporting to Guvera Global and that Blinkbox had been taken "into the fold" under a new structure. Redundancies were also announced. The tribunal found that it was when Guvera assumed day to day control that a TUPE transfer occurred. Blinkbox subsequently went into administration.
The EAT dismissed Guvera's appeal. Although there were technical reasons for the decision, it also held that the appeal had no merit. The tribunal recognised that whether there has been a transfer is a multi-factorial question and that no single factor is decisive. It was particularly significant that Guvera had assumed the rights or powers of an employer towards the employees; it gave instructions to Blinkbox employees and took decisions in relation to redundancies. It was an "unattractive" submission that there could not be a transfer unless Guvera also assumed responsibility for paying employees' wages. That would not be consistent with the policy underlying TUPE and the Acquired Rights Directive on which it is based and there was nothing in existing cases to suggest that it was necessary for a putative transferee to pay employees before a transfer can take place.
