TUPE and garden leave

In ICAP Management Services Ltd v Berry where a senior executive was placed on garden leave he considered that a TUPE transfer would enable him to terminate his leave early.

Mr Berry gave notice to his employer, ICAP Management Services Ltd to join a competitor, BGB Services (Holdings) Limited. ICAP put him on garden leave.  During this time ICAP was the subject of a share sale acquisition by Tullet Prebon plc.  Mr Berry considered that this acquisition led to a TUPE transfer and objected to it under Reg 4(7) of TUPE.  This would have enabled his contract to be terminated and allow him to take up his new position earlier that would have otherwise been possible.  ICAP did not agree and sued to enforce the garden leave.

Mr Berry’s case was rejected in the High Court as TUPE requires a change of employer.  The share sale acquisition in this instance did not result in a change of employer, the operating and service companies remained the same and business carried on exactly the same way that it had before.  To this end, there was no TUPE transfer and, therefore, nothing for Mr Berry to object to.  ICAP succeeded in their application and the garden leave was enforced.

Written by

Edward Aston
20 June 2017

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