This was an Appeal being brought by the second respondents at the original hearing, Capita Health Solutions Ltd, against a decision of the Employment Tribunal on 16 April 2007. Mrs McLean had been employed by the BBC from May 1988 as an occupational health nurse but on 16 February 2006 her employers announced that elements of their Human Resources Department would be transferred to Capita Health Solutions Ltd as and from 1 April 2006.
This announcement directly affected Mrs McLean and she indicated that she objected to being transferred in accordance with TUPE Regulations on the grounds that this would constitute a significant change in her role and it would have an adverse effect on the pension conditions available in the event that she opted to take an early retirement. She registered a formal grievance, which was dealt with on 22 March 2006 and ultimately rejected.
Subsequently, on 30 March 2006, Mrs McLean tendered her resignation but agreed to carry on working until 12 May 2006, apparently under the guise of a secondment to Capita Health Solutions Ltd.
During this six week period of apparent secondment, her salary continued to be paid by the BBC, together with her pension contributions, accrued holiday pay and also a long service payment upon the termination of her employment in May 2006.
The suggestion was put forward on behalf of Mrs McLean that she had simply continued to work her notice period and that, to all intents and purposes, she remained in the employment of the BBC.
The Honourable Lady Smith, who was sitting alone in judgment of this case, proceeded to consider at some length the aforementioned TUPE (1981) Regulations, together with relevant case law, including Celtec Ltd –v- Astley & Ors [2005] ICR 1409 and Hope –v- PGS Engineering Ltd (in administration) UKEAT/0267/04/TM. The Judge then made it clear that there were a number of matters relating to Mrs McLean’s situation which appeared to be at odds with her assertion that her employment was not transferred from the BBC to Capita Health Solutions Ltd.
According to Regulation 5(5) of the TUPE legislation, an employee has the right to terminate his or her Contract “without notice if a substantial change is made in his working conditions to his detriment.” Consequently this led Lady Smith to conclude that employees are plainly entitled to object to being transferred to the employment of another employer and the question of whether or not an employee has in fact objected should be determined on the basis of the facts and circumstances involved in each individual case. It was pointed out that the relevant parties stated intentions, whilst constituting relevant considerations, could not be taken as completely determinate in the event that there is something of a grey area.
Lady Smith rejected the suggestion that an employee’s contract of employment could be allowed to continue beyond a date of transfer without interruption if all parties were agreeable. She was of the opinion that this was directly at odds with Regulation 5(4b) and she consequently concluded that Mrs McLean’s employment did in fact transfer to Capita Health Solutions Ltd on 1 April 2006, the date upon which the undertaking was transferred.
She therefore proceeded to conclude that the Mrs McLean had not, as such, objected to being transferred to the employment of Capita as she proceeded to work for them for a period of 6 weeks after the transfer.
The judgment also made it clear that, although Mrs McLean preparedness to work for Capita was time limited, this was not sufficient to constitute an overall objection to the transfer. She indicated that the use of the word “secondment” had no real impact on the situation and certainly it was not sufficient to materially alter the facts of the situation as otherwise presented.
As part of her judgment Lady Smith in fact took issue with the decision in the earlier case of Hope. She indicated that she felt that this particular decision had failed to take adequate account of the impact of Regulation 5(4b) and this led her to ponder whether or not the earlier decision may in fact have been changed had the decision in Celtec predated it.
However, ultimately it would seem that in respect of the instant case the individual’s employment had fully transferred on 1 April 2006 and, accordingly, the claim against the British Broadcasting Corporation was dismissed at first instance. Lady Smith proceeded to dismiss the Appeal and reaffirmed the original conclusion of the Employment Tribunal, albeit with somewhat different reasoning as set out above.