This is one of the few cases in which cross border transfers have been considered. The EAT held that TUPE may apply where a business is transferred to another jurisdiction, including one outside the EU.
A curtain manufacturing business with 180 employees was sold to Hollis Metal Industries. The employees were then informed by letter that the factory would close, manufacturing would be transferred to Israel and the employees would be made redundant unless they wished to move to Israel. The employees were then dismissed. The GMB brought a claim on behalf of the employees for failure to inform and consult under Reg 13 TUPE and s. 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. Hollis sought to strike out the claim on the basis that TUPE did not apply where a business is transferred to another jurisdiction.
The EAT hearing the appeal against strike out
The EAT stated that the wording of Reg 3 of TUPE and the Directive are precise in setting the application of the regulation of transfers of undertakings situated immediately before the transfer in the UK. A purposeful approach to the legislation meant that employees should be protected even if the transfer is to be across borders outside the EU. The critical point is the pre-transfer requirement of location in the UK. The EAT considered and confirmed the body of academic opinion in this area.
While enforcement in such cases may prove problematic the EAT observed that it can be difficult even within the EU.