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The Court of Appeal case of Key2Law (Surrey) LLP v De'Antiquis concerned the application of the exemption from certain TUPE provisions for insolvency proceedings analogous to bankruptcy proceedings instituted with a view to the liquidation of the assets of the transferor.
In this case, the claimant had been employed as a solicitor. She was made redundant a few days before her firm went into administration. The administrators granted Key2Law a management contract for the offices where Ms De'Antiquis had worked and she brought various claims for unfair dismissal and breach of TUPE against them, claiming they were the transferee under TUPE.
The extent of the exemption from TUPE's application depends on the kind of insolvency proceedings that the business is undergoing, and previous EAT cases have held that all administrations fall outside the exemption's scope, even in a ‘pre-pack' situation, since they do not constitute insolvency proceedings ‘instituted with a view to the liquidation of the assets' of the transferor.
The Court of Appeal upheld the previous case-law and held that although, in practice, a range of possibilities including liquidation may be open to an administrator, it would be impractical to carry out a factual analysis of the intentions or views of the appointed administrators in each case. The Court of Appeal confirmed that all administrations fall outside the exemption.
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