Employment Lawby Martin Edwards, Mace & Jones, LiverpoolTransfer of Undertakings (Protection of Employees) (TUPE)Martin v Lancashire County Council, Bernadone v Pall Mall Services Group Ltd & others, The Times, 26 May 2000This Court of Appeal here addressed two related matters.

The first was whether a transferor's liability in tort to an employee in respect of personal injury which accrued before a TUPE transfer would be transferred to the transferee by virtue of reg.

5(2) of TUPE.

The court held that it would.

The language of reg.

5(2) was wide enough, even without there being express reference to tortious rights and liabilities, to allow for liability in negligence to arise 'in connection with the contract of employment'.

The second question was whether, if the transferor had effected an employer's liability insurance policy, the right of indemnity under that policy would also be transferred to the transferee by virtue of reg.

5(2).

Again, the court held that it would.

TUPE must if possible be construed so as to ensure that, on transfer, the employee is not deprived of rights against his employer, which he would otherwise have had he continued to be employed by the transferor and arising out of or in connection with his contract of employment with the transferor.The employer was under a statutory duty to ensure against liability for injury sustained by his employees arising out of and in the course of their employment in the business.

On transfer, a liability which was transferred ceased to be enforceable against the transferor: Allan v Stirling District Council (1995) ICR 1082.

It was unlikely that the transferee would have employers' liability insurance covering liability arising before the employee became his employee.

The transferee could become insolvent.

Unless the employee had the same benefits and potential rights under the statutory insurance regime after the transfer as he did before, he could be seriously disadvantaged by the transferor.

The transferor's right was to recover from the insurers an indemnity in respect of the transferor's liability arising from or in connection with the employee's employment contract.

That was the very liability which the transferor was required to insure.

While it was true that this right was under the insurance contract with third parties, the insurers, the key point was that the right arose from and was in connection with the contract of employment.

This reasoning was consistent with the required purposive approach to TUPE.

Moreover, it was just, because the transferor's insurers had received premium in respect of that very liability and there was no good reason why the law should apply so as to enable insurers to keep that premium but avoid liability.

Who is a worker?Edmonds v Lawson & others, (2000) IRLR 391The Court of Appeal held that a pupil barrister who accepted a written offer by chambers for an unfunded pupillage entered into binding contract with the members of chambers.

That contract, however, was not one of apprenticeship for the purpose of the National Minimum Wage Act 1998.

Accordingly, the pupil was not a 'worker' entitled to payment of the minimum wage during pupillage.

An appeal against a decision to the contrary of the High Court was thus allowed.

The court set considerable store by the fact that most barrister pupils have been unpaid in modern times, whereas trade apprentices have always in modern times received wages.

According to the Court of Appeal, the fact that pupils had been up to the present unpaid reflected the lack of expectation that they would render services of value.

One wonders, however, whether the absence of payment is quite as significant as the Court of Appeal believed, given the unique nature of the relationship between chambers and pupil.