In ISG v Vernon and Others the High Court has held that where employees do not know the identity of the transferee prior to a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), they can exercise their right to object to the transfer after it has taken place.

Background

Under TUPE an employee will not transfer if he informs the transferor or the transferee that he objects to the transfer of his employment to the transferee. Normally this objection is given before the transfer. Here five claimant employees objected to a transfer of their employment two days after the transfer took place as they did not know the identity of the transferee before the transfer and so were unable to object to the transfer beforehand.

The Court held that to deny the claimants the ability to object after the transfer would deny them their fundamental right to choose their employer. The court therefore upheld the objection by the claimants.

Impact on Employers

  • The facts in this case are quite unusual and it would have been impossible for the employees to object before the transfer took place. It will normally be an obligation on the transferor to inform employees of the identity of the transferee.