CPL Distribution Limited v Todd [2003] IRLR 28 (Court of Appeal)
The trasfer of undertakings (Protection of Employment) Regulations 1981 operates to transfer the contracts of employment of those employed in the part transferred. Who is employed in the part transferred?
This was the question the Court of Appeal addressed in the case of CPL v Todd. Mrs Todd worked as the Personal Assistant to a regional manager who became manager of the concessionary coal side of CPL's business and was then given additional duties as business acquisition manager. The concessionary coal side of the business was transferred. Neither the manager nor the PA transferred. The manager continued as business acquisitions manager with the transferor (CPL).
Mrs Todd argued that she was not employed in the part transferred and that CPL should have made her redundant. The Employment Tribunal agreed and this was upheld by the Employment Appeal Tribunal and the Court of Appeal.
The test of whether someone is employed in the part transferred was set out by the European Court of Justice in the case of Botzen [1986] CMLR. The question is whether the employee was assigned to the part which transferred.
This was characterised by the Court of Appeal in Gale v Northern General Hospital [1994] IRLR 292 as determining whether an employee formed part of 'the human stock' of the part transferred.
The Court of Appeal concluded that the Tribunal had found that Mrs Todd was assigned to work for the particular manager and that the manager was not assigned to work for the part transferred. This meant that Mrs Todd was not assigned to the part transferred.
There was evidence that the majority of Mrs Todd's typing was on the concessionary coal contract. This was not accepted as conclusive that Mrs Todd was assigned to the contract. Her duties involved matters other than typing and although the percentage of time spent on particular work was a relevant factor, it was not the only one. Other factors included the amount of value given to each part of the business by the employee; the terms of the contract showing what the employee could be required to do; and the allocation of the costs of the employee within the employer's budget. It is a question of fact for the Tribunal. This case does not set out any new legal test, nor break new legal ground. It is, however, a useful reminder that a pure 'time recording test' is not enough. In other words, it is not sufficient to show that an employee works 50% of her time on a particular part of her job.
That will not of itself prove that she is assigned to that part of her job in the event of a transfer.Tribunals must look at all the factors and will be particularly influenced by any evidence of a formal appointment or assignment to a particular department or by evidence that an employee appears in the budget of a particular department or cost centre.
This case is also a useful reminder that not all employees wish to transfer (or be regarded as transferring) as Mrs Todd successfully argued that she remained the responsibility of the transferor.