Wood v Caledon Social Club Ltd (Debarred) & Anor

For a transfer under regulation 3(1)(a) of TUPE 2006, an economic entity may retain its identity despite a temporary cessation of operations at the putative transfer date. It is sufficient that the operation is intended to resume and does in fact resume in substantially the same form. Continuity need not be uninterrupted from the transfer date. A short suspension caused by the absence of a premises licence therefore does not, by itself, prevent a relevant transfer.

Mr Wood appealed against the majority decision of an Employment Tribunal, which held that no relevant transfer had occurred when the operation of a licensed bar passed from Caledon Social Club Ltd to London Colney Parish Council. The Tribunal considered that the economic entity had lost its identity because the premises licence was absent on the putative transfer date. The appeal concerned whether a temporary cessation of the bar operation prevented a transfer under regulation 3(1)(a) of TUPE 2006.

1. The appeal was allowed. The Employment Appeal Tribunal substituted a declaration that a relevant transfer under regulation 3(1)(a) of TUPE 2006 occurred from the First Respondent to the Second Respondent on 16 September 2008.
2. The decisive question is whether the economic entity retained its identity. That identity may be indicated by the fact that the entity’s operation is continued or resumed. The requirement does not demand uninterrupted operation on the transfer date.
3. On the facts found, the bar operation was temporarily suspended rather than terminated. By 16 September the Second Respondent intended to obtain a fresh premises licence and reopen the bar area in precisely the same manner. The bar reopened on 6 October after a personal licence had been granted.
4. The absence of a premises licence on 16 September was therefore not fatal. The economic entity retained its identity during the temporary suspension, and the relevant transfer took place on that date.
5. The matter was remitted to an Employment Tribunal appointed by the Regional Employment Judge at Watford for a merits hearing of the unfair dismissal claim.

• Employment Appeal Tribunal: allowed the appeal, substituted a declaration that a relevant transfer occurred on 16 September 2008, and remitted the unfair dismissal claim for a merits hearing.
• Employment Tribunal, Watford: by majority, held that no relevant transfer had occurred because the premises licence was absent on the putative transfer date.