A recent case [London United Busways Ltd. (LUB) v De Marchi and Abellio London [2024] EAT 191] revealed the complexities of working under the Transfer of Undertakings (Protection of Employment) Regulations 2006, or TUPE.

A Mr. De Marchi had been working as a bus driver for two decades by LUB from his local bus depot, even though his contract contained a clause to the effect that employees may be expected to work at any of the depots across London. After LUB lost its tender for his route, his employer elected to exercise this right of transfer, unless the employee objected by a specified deadline under Regulation 4(9). Given the options to transfer, resign or object, Mr. De Marchi objected to his transfer and requested redundancy, as the new depot was over an hour from his domicile. As this was not one of the three alternatives, LUB rejected his approach, and Mr. De Marchi took a leave of absence suffering from stress and anxiety as he had been informed that, if he failed to sign a new contract by the deadline, his employment would effectively be terminated.

Mr. De Marchi failed to respond and later brought a claim for unfair dismissal against the transferor. The tribunal found that, while the employee may object to becoming employed by the transferor under Regulation 4(7) of TUPE, the effect of that objection is to preclude the transfer of his contract and any of the rights and obligations under Regulation 4(2) of TUPE.  However,  Regulation 4(8) TUPE operates to terminate the contract with the transferor to the detriment of the employee.

This ruling serves to provide useful guidance in terms of who is liable. If the objection occurs before the transfer, then the liability falls on the transferor. However, if the employee does not object to the transfer in a timely fashion and then tries to argue Regulation 4(9), then the liability falls on the transferee. It is thus advisable to seek legal advice before transferring employees to other positions or locations.

A tribunal recently ruled on the failure of a private limited company, El Recruitment Ltd., to submit its Re-DOC before the statutory deadline as required under the 'Employer Duties' of the Pensions Act 2008. The Pensions Regulator had sent two prior letters, although the company failed to do so and received a compliance notice addressed to the registered office address which was considered properly served.

The regulator unsuccessfully attempted to call the appellant using the number held within its records. El Recruitment did not complete the Re-DOC by the extended deadline and so the Pensions Regulator issued a £400 fixed penalty per Section 144A of the Act.

The director argued that they had moved out of the registered office and forgot to update the registered office address, although they could not be reached by telephone. However, the Tribunal was unmoved and unconvinced by this argument, as one of the reminders had been sent before the move and was still ignored.

While the Pensions Regulator is not obliged to send reminder communications it usually does so as a courtesy and the Company’s appeal over its £400 fine was unsuccessful. This case highlights the importance of filing promptly and allowing sufficient time for delivery.  Re-enrolment must take place every three years at a date of your choosing. To do so today visit https://declaration.ae.tpr.gov.uk/