Objection to Transfer Under TUPE Ineffective

The Employment Appeal Tribunal (EAT) has held in Capita Health Solutions Ltd (Capita) v BBC and McLean [2008] UKEAT 0034/07/0105 that despite Mrs McLean objecting to being transferred to her new employer under TUPE, her objection was ineffective and her employment contract was therefore deemed to have transferred.

On 1 April 2006, the BBC transferred its human resources department, which included its occupational health service, to Capita. The Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE 1981) (now re-enacted as the Transfer of Undertakings (Protection of Employment) Regulations 2006) applied to the transfer. Mrs McLean, who was employed in the occupational health service, objected to being transferred to Capita and handed in her resignation to the BBC on 31 March 2006. She informed the BBC that she would agree to work a "period of secondment" with Capita until 12 May 2006. During that six-week period, the BBC paid Mrs McLean her salary, pension contributions and accrued holiday pay, as well as a long service payment on the termination of her employment.

The EAT acknowledged the principle that employees are entitled to object to being transferred to the employment of a new employer under TUPE. However, whether an employee objects to a transfer is a question of fact and this must be objectively decided in all the circumstances of the particular case. Under Regulation 5 of TUPE 1981 (now Regulation 4 of TUPE 2006), a valid objection will prevent the transfer occurring and will terminate the employment contract. As Mrs McLean continued to be an employee of the BBC after she resigned, she could not be taken to have objected to the transfer. In reality, Mrs McLean's employment had therefore transferred to Capita under TUPE for a short period of time.