It was not a breach of Regulation 11 of TUPE for a transferor, when giving Employee Liability Information to a transferee, to incorrectly state that a Christmas bonus was non-contractual, when it turned out it was contractual.
This was the decision in the EAT in Born London Limited v Spire Production Services Limited where Born took over a contract from Spire to print Sotheby’s catalogues. Spire provided Born with details of the employees’ Christmas bonus, and stated that it was ‘non-contractual’. Born contended that, because the bonus was in fact contractual in nature, Spire had given incorrect Employee Liability Information and Born should be compensated for this misstatement under Regulation 12 of TUPE.
The employment tribunal concluded that Born’s claim had no reasonable prospect of success and the EAT agreed. Section 1 of the ERA 1996 sets out the requirements on employers in respect of a statement of employment particulars. Those particulars were not to be read as limited to contractual terms and conditions. But there was no obligation to state whether the particulars were contractual or not. Saying that the bonus was non-contractual went further than the particulars required to be provided for Regulation 11 purposes. There was therefore no breach.