The Employment Appeal tribunal found that the date of the relevant transfer was 21 March 2023 and that, as a petition for winding up had been presented on 7 March 2023 and a provisional liquidator appointed on that date, reg. 8(7) applied at the date of the transfer, thereby disapplying reg. 4 (transfer of contracts) and reg. 7 (unfair dismissal).

The secretary of state appealed against the judgment of the tribunal on two grounds: (1) that the tribunal had misdirected itself in its approach to identifying the date of the relevant transfer; and (2) that the tribunal had erred in finding that reg 8(7) TUPE was satisfied at the date of the presentation of the petition for winding up and the appointment of a provisional liquidator, rather than the date of the winding up order (31 March 2023).

Lady Poole dismissed both grounds of appeal. The reasons for dismissing the first ground are a useful reminder of the high bar that exists for challenging a finding in fact by the tribunal. But the reasoning for the dismissal of the second ground is perhaps the more interesting part of the judgment for employment lawyers, and a welcome contribution to this complex area of the law.

The EAT remitted the case to the Employment Tribunal.