The tribunal should have looked at when the responsibility for the relevant business passed from one business to another. The transfer of employment contracts takes place by operation of law as a consequence of the relevant transfer regardless of what the parties intended or believed with regard to employment contracts. See Housing Maintenance Solutions Ltd v McAteer and others UKEAT/0440/13. The EAT gave the following additional guidance:
- It is not correct that an undertaking does not transfer until the transferee starts carrying out the transferred activities. An undertaking transfers when the transferee assumes responsibility for carrying on the business.
- Employment of staff or the resumption or continuation of activities are not in themselves conclusive as to the date the undertaking is transferred.
- In reaching a decision as to whether an undertaking is transferred, all the relevant circumstances must be taken into account.
- Temporary closure of the undertaking does not stop a TUPE transfer from taking place.