Summary

A recent court decision confirmed that transparent pre-pack sales can be used where they are in the best interests of the creditors as a whole. The court ruled that:

This recent case in the Employment Appeal Tribunal (EAT) is one of the first to examine how the insolvency provisions in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) should apply and, in particular, the circumstances in which employment liabilities passed under TUPE to the buyer of the assets of an insolvent company.

Facts

This case involved a "pre-pack" administration.

In Oakland v Wellswood (Yorkshire) Ltd, the Employment Appeals Tribunal (EAT) decided that an employee of a business in administration was unable to have the protection afforded to employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) when the business in which he was employed was transferred and continued as a going concern with the transferee.

In its judgment in Haine v Sec of State for BERR and the liquidator of Compounds Section Ltd the Court of Appeal has decided an important question on employer insolvency.

In Dynamex Friction Ltd v Amicus an administrator had dismissed the entire workforce immediately on being appointed because the company had no money to pay its debts. At that time no transferee of the insolvent business had been identified and there was no prospect of a sale. However, the administrator did shortly afterwards agree a sale of the remaining company assets to a newly formed purchaser company that had links with the directors of the ‘old’ company.

Following the House of Lords' decision in Melville Dundas in April, the TCC has now decided in the case of Pierce Design v Johnston on 17 July that the case has a wide application - but unreasonable failure to pay may still be penalised.

The decision of the House of Lords in Melville Dundas in April resolved a tension between the payment provisions of the Housing Grants, Construction and Regeneration Act 1996 ("the Act") and contractual clauses applying to payments after termination of building contracts.

Summary

A recent court decision confirmed that transparent pre-pack sales can be used where they are in the best interests of the creditors as a whole. The court ruled that: