Macfarlanes secures win in strategic TUPE dispute

The High Court today handed down its decision in ICAP Management Services Limited v Berry &; Anor, holding that the Claimant was entitled to a permanent injunction to restrain a former employee, Mr Dean Berry, from breaching a garden leave covenant in his employment contract by going to work for a competitor, BGC.

The dispute concerned the potential application of the TUPE regulations in the context of a significant corporate transaction – in this case the acquisition of ICAP Plc’s global broking business by Tullett Prebon Plc, now TP ICAP Plc, which completed at the end of 2016.  Mr Berry argued that the transaction had resulted in a TUPE transfer, to which he had objected, freeing him from his garden leave obligations.  The Court rejected that argument, holding that no TUPE transfer had taken place. 

Jonathan Arr, who headed the Macfarlanes team, comments: "This is a significant decision that will be welcomed across the City and beyond.  Had a TUPE transfer been found to have arisen out of this major corporate transaction, it would likely have opened the door to a number of further claims and substantial uncertainty as to the state of the law.  As it is, the Court reached a clear decision that will no doubt be of assistance to practitioners in future."
    
The Claimant, ICAP Management Services Limited, was represented by Counsel Daniel Oudkerk QC, Jane McCafferty and Edward Brown, and a Macfarlanes team led by Jonathan Arr (Partner), Joanna Constantis (Senior Counsel) and Chris Charlton (Senior Solicitor). ICAP Management Services Limited’s legal team was led by Richard Elmitt, General Counsel, EMEA, Rachael Wadley, Senior Associate Counsel, and Jo-Ann Semple, Senior Associate Counsel.

"This is a significant decision that will be welcomed across the City and beyond. Had a TUPE transfer been found to have arisen out of this major corporate transaction, it would likely have opened the door to a number of further claims and substantial uncertainty as to the state of the law. As it is, the Court reached a clear decision that will no doubt be of assistance to practitioners in future."