“Article 1 1. (a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger. (b) Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. (c) This Directive shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. An administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, is not a transfer within the meaning of this Directive. 2. This Directive shall apply where and in so far as the undertaking, business or part of the undertaking or business to be transferred is situated within the territorial scope of the Treaty… Article 2 1. For the purposes of this Directive: (a) "transferor" shall mean any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), ceases to be the employer in respect of the undertaking, business or part of the undertaking or business; (b) "transferee" shall mean any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), becomes the employer in respect of the undertaking, business or part of the undertaking or business;… (d) "employee" shall mean any person who, in the Member State concerned, is protected as an employee under national employment law. 2. This Directive shall be without prejudice to national law as regards the definition of contract of employment or employment relationship. Safeguarding of employees' rights Article 3 1. The transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer. 2. Member States may adopt appropriate measures to ensure that the transferor notifies the transferee of all the rights and obligations which will be transferred to the transferee under this Article, so far as those rights and obligations are or ought to have been known to the transferor at the time of the transfer. A failure by the transferor to notify the transferee of any such right or obligation shall not affect the transfer of that right or obligation and the rights of any employees against the transferee and/or transferor in respect of that right or obligation. 3. Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”
“During his employment hereunder the employee agrees to serve the company and its group of companies as CEO Global e-Commerce subject to the provisions of this agreement in Part 1(the staff handbook)”
“3.1 The Employment of Employee hereunder shall…..commence on1 September 2013 (the commencement date)……” 3.2 The Employment of the Employee may be terminated by either party giving to the other not less than twelve months’ prior notice”
“(i) As to whether there is an undertaking, there needs to be found a stable economic entity whose activity is not limited to performing one specific works contract, an organised grouping of persons and of assets enabling (or facilitating) the exercise of an economic activity which pursues a specific objective — Sanchez Hidalgo paragraph 25; Allen paragraph 24 and Vidal para 6 (which, confusingly, places the reference to “an economic activity” a little differently). It has been held that the reference to “one specific works contract” is to be restricted to a contract for building works — see Argyll Training infra EAT at paras 14–19. (ii) In order to be such an undertaking it must be sufficiently structured and autonomous but will not necessarily have significant assets, tangible or intangible — Vidal paragraph 27; Sanchez Hidalgo paragraph 26. (iii) In certain sectors such as cleaning and surveillance the assets are often reduced to their most basic and the activity is essentially based on manpower — Sanchez Hidalgo paragraph 26. (iv) An organised grouping of wage-earners who are specifically and permanently assigned to a common task may in the absence of other factors of production, amount to an economic entity — Vidal paragraph 27; Sanchez Hidalgo paragraph 26. (v) An activity of itself is not an entity; the identity of an entity emerges from other factors such as its workforce, management staff, the way in which its work is organised, its operating methods and, where appropriate, the operational resources available to it — Vidal paragraph 30; Sanchez Hidalgo paragraph 30; Allen paragraph 27.”
“It is not in dispute that an employee relationship is covered as well as a contract of employment but what is in dispute is whether that must be a contractual relationship…. In my judgment it is clear that the Regulations of 1981 proceed on the basis that there must be a contract. One gets that from the application of the ejusdem generis rule to “contract of service or apprenticeship or otherwise” in the definition of “employee”, from the definition of “contract of employment” as meaning any agreement between an employee and his employer determining the terms and conditions of his employment, and from regulation 5 (1) which proceeds on the footing that there will be a contract of employment of a person employed by the transferor in the undertaking or part transferred.”
“The Regulations and the Directive refer quite specifically to the change of employer and to a transferor and transferee being any natural or legal person.”
“could have addressed, but did not, the circumstances in which there was no transfer from a legal person to another legal person, but the shareholding membership of the legal person changed though its separate legal identity remained untouched.”
“3 The question under TUPE is whether the business in which the claimant is employed has been transferred from one owner to another. That question is attended by some legal issues. For instance, it is well established, and accepted on all sides in this case, that a change in the legal control of the original corporate employer, such as occurs on a share sale of the kind that took place in this case, does not of itself transfer the business in TUPE terms. That was decided by the EAT in Brookes v Borough Care Services[1998] ICR 1198 , a decision the correctness of which was not in issue before us. It is also well established that the mere fact that two companies are part of the same group, or that one company is the parent of another, does not of itself mean that the one company controls the business of the other. That is inherent in the decision of the Court of Justice inCase C-234/98 [1999] ECR I-8643 (Allen) . However, those rules as to what does not constitute a transfer under the TUPE Regulations are merely reminders that the question is whether as a matter of fact the business in which the claimant is employed has been transferred from one company to another.” (Emphasis Added)
“30. That the Tribunal understood the task required of them and applied the test correctly is in our view clear from their findings of fact and reasoned conclusions. On1 October 2010 and upon the share purchase by ML, MG announced that it had acquired JL and that it was embarking on a process of integration. A team of integration managers and staff arrived on site that same day. The Tribunal were in our view entitled to take into account what happened after 1 October, having regard to that clear statement of intent and the arrival of the integration team on 1 October.”
"10.1 During his notice period or any part or parts thereof, or at any other time, the Company may in its absolute discretion require the Employee to perform only such duties or other such other duties (including without limitation research projects) as it may allocate to him or not to perform any of his duties and may require him not to have any contact with clients of the Company or any Group Company nor any contact with such employees of the Company and any Group Company as the Company shall determine and/or may exclude him from any premises of the Company or of any Group Company (without providing any reason therefore) PROVIDED ALWAYS that throughout the period of any such action referred to in this Clause ("
“During the currency of the employment relationship, when an express negative covenant or the implied duty of good faith apply to prevent an employee working for another employer, the doctrine of restraint of trade will not apply to such a restraint; nor is there a need to justify an express contractual garden leave provision by reference to this doctrine. However in circumstances where an employer has put an employee on garden leave and then seeks an injunction to restrain the unwilling employee from joining a competitor before the expiry of his notice period, an injunction to enforce or aid that period of garden leave must be considered in light of the restraint of trade doctrine. The fact that the employee agreed to the contractual provisions may be a factor in the court's consideration but it is not the only or primary factor. The scope for abuse by an employer of a garden leave provision is well recognised and I agree with Mr Quinn, that public policy considerations compel consideration of the restraint of trade doctrine in this context”
“221 Where the enforcement of a garden leave provision differs from the enforcement of a covenant is that the enforceability of a covenant is to be judged at the time that it was entered into. If, on that basis, it is unenforceable, that is the end of the matter. If it is enforceable, then prima facie an injunction will follow. But there may be situations where the court will nonetheless hold that, because of what has actually happened, an injunction is inappropriate, or is inappropriate for the whole period of the covenant. The enforcement of a garden leave provision may come in at this stage as a reason for declining to enforce the covenant in whole or part. 222 Where the issue is garden leave, the court looks at the situation at the time enforcement is sought. The court will look primarily at what is required for the reasonable protection of the protectable interest, here trade connection. It will also take account of the situation of the employee. That brings in here the facts that the brokers are on garden leave as a result of their having walked out from their employment in reliance on their indemnities from BGC without, as I have held, having grounds to do so; that they are suffering no financial loss because they are receiving salary from Tullett and will be indemnified for bonus by BGC and are in fact better off as a result of what has happened by reason of their signing payments from BGC. The court will also have in mind the strong public interest in employees being held to contracts which they have freely entered into for substantial remuneration. That interest pulls in the opposite direction to the public interest in employees being freely able to exercise their skills in work by transferring from one employer to another. It is also a factor that the brokers will take time to get back up to speed once they begin work again. It is also ironic that under their contracts with BGC they will have rather less freedom of future movement than under their contracts with Tullett. These are all factors which are subsidiary to the main issue as to the time required for the reasonable protection of the employer's protectable interests. 223 The public interest in employees being held to their contracts may be satisfied not only by means of injunctions. Where an employee breaks his contract, he will be liable in damages for such loss as his employer can establish as caused by his breach. Whether or not an injunction is granted, that remains. For an injunction to be granted the employer must show that damages would not be an adequate remedy. This is usually established, perhaps without much difficulty, by showing that the assessment of the loss would be speculative and so the loss hard to prove. In such circumstances the threat of a claim for damages is reduced: but it does not disappear. 224 Where the court considers that the period for which the employer is entitled to protection ends during the time for which the employee may be on garden leave, it will enforce the garden leave provision for that period, and will decline to enforce any enforceable post termination restriction. It will decline the latter because the employer will have already got all the protection he is entitled to, and the court has a discretion not to enforce an enforceable post termination restriction or covenant where the circumstances are such that it should not”
“60 I accept however that in exercising that wide discretion both as to the period of the injunction to enforce garden leave and as to its scope, the court will be astute to recognise that the practice of long periods of garden leave is obviously capable of abuse: it is a weapon in the hands of the employer that might be used to ensure that an ambitious employee will not give notice if he is going to be unable to work at all for anyone else for a long period of notice: Provident Group plc v. Heywood[1989] ICR 160 at 165 (Dillon LJ). 61 Accordingly, an injunction sought to aid or enforce a garden leave clause must be justified on similar grounds as a restrictive covenant. This means that the Claimant must demonstrate a legitimate interest to protect and must show that the injunction sought extends no further than is reasonably necessary to protect that legitimate interest. The grant of an injunction is a discretionary remedy, and may be refused if in fact the Claimant will suffer no damage (or because of delay). Finally, there is greater flexibility in cutting down the terms of the restriction when dealing with garden leave than when dealing with the terms of a restrictive covenant. The court accordingly has the flexibility to grant an injunction for less than the full notice period if that is the extent of the period in respect of which it can be justified.”
“It is thus established that an employer can stipulate for protection against having his confidential information passed on to a rival in trade. But experience has shown that it is not satisfactory to have simply a covenant against disclosing confidential information. The reason is because it is so difficult to draw the line between information which is confidential and information which is not: and it is very difficult to prove a breach when the information is of such a character that a servant can carry it away in his head. The difficulties are such that the only practicable solution is to take a covenant from the servant by which he is not to go to work for a rival in trade. Such a covenant may well be held to be reasonable if limited to a short period. That appears from the judgment of Cross J. in Printers & Finishers Ltd. v. Holloway [1965] 1 W.L.R. 1, 6: “Although the law will not enforce a covenant directed against competition by an ex-employee it will enforce a covenant reasonably necessary to protect trade secrets … If the managing director is right in thinking that there are features in the plaintiffs' process which can fairly be regarded as trade secrets and which their employees will inevitably carry away with them in their heads, then the proper way for the plaintiffs to protect themselves would be by exacting covenants from their employees restricting their field of activity after they have left their employment, not by asking the court to extend the general equitable doctrine to prevent breaking confidence beyond all reasonable bounds.”” “Although the law will not enforce a covenant directed against competition by an ex-employee it will enforce a covenant reasonably necessary to protect trade secrets … If the managing director is right in thinking that there are features in the plaintiffs' process which can fairly be regarded as trade secrets and which their employees will inevitably carry away with them in their heads, then the proper way for the plaintiffs to protect themselves would be by exacting covenants from their employees restricting their field of activity after they have left their employment, not by asking the court to extend the general equitable doctrine to prevent breaking confidence beyond all reasonable bounds.””
“41 In order to establish that the inclusion of a non-competition clause in an employment contract was reasonably necessary for the protection of the employer's interest in confidential information, the first matter which the employer obviously needs to establish is that at the time of the contract the nature of the proposed employment was such as would expose the employee to information of the kind capable of protection beyond the term of the contract (i e trade secrets or other information of equivalent confidentiality). The degree of the particularity of the evidence required to establish that matter must inevitably depend on the facts of the case. To say this is to say nothing new. Aldous LJ stated the principle in Scully (UK) Ltd v Lee[1998] IRLR 259 , 263, para 23: “In cases where a restrictive covenant is sought to be enforced, the confidential information must be particularised sufficiently to enable the court to be satisfied that the plaintiff has a legitimate interest to protect. That requires an inquiry as to whether the plaintiff is in possession of confidential information which it is entitled to protect. (See Littlewoods Organisation Ltd v Harris[1977] 1 WLR 1472 at 1479 f .) Sufficient detail must be given to enable that to be decided but no more is necessary.” 42 Provided that the employer overcomes that hurdle, it is no argument against a restrictive covenant that it may be very difficult for either the employer or the employee to know where exactly the line may lie between information which remains confidential after the end of the employment and the information which does not. The fact that the distinction can be very hard to draw may support the reasonableness of a non-competition clause. As was observed by Lord Denning MR in Littlewoods Organisation Ltd v Harris[1977] 1 WLR 1472 , 1479, and by Waller LJ in Turner v Commonwealth & British Minerals Ltd[2000] IRLR 114 , para 18, it is because there may be serious difficulties in identifying precisely what is or what is not confidential information that a non-competition clause may be the most satisfactory form of restraint, provided that it is reasonable in time and space.” “In cases where a restrictive covenant is sought to be enforced, the confidential information must be particularised sufficiently to enable the court to be satisfied that the plaintiff has a legitimate interest to protect. That requires an inquiry as to whether the plaintiff is in possession of confidential information which it is entitled to protect. (See Littlewoods Organisation Ltd v Harris[1977] 1 WLR 1472 at 1479 f .) Sufficient detail must be given to enable that to be decided but no more is necessary.”
“Q. So even as at May 2016, there is a discussion about what's going to be happening in 2017, isn't there? A. So my recollection of this is that the discussion was very limited. It was talked about at length that a detailed setting of new objectives would be fruitless, and given the transaction was then thought to be very close to closing, which it subsequently wasn't, but it was at that point thought it would close very soon, that that should wait. So whilst I believe there was reference to it in the meeting, I don't believe that the objectives were in any way set or refreshed, in fact the opposite. Q. Let me just understand this. Do I understand your evidence to my Lord to be you in fact have a specific memory of this discussion? A. So I have a memory of objectives being discussed in general. I remember that there was an issue around the transaction closing. I recall that because it was the hot topic for a number of months prior to that. So the transaction was the main theme and the objectives I remember were parked. I don't remember what the detail of that was, but I remember they were parked, so they were not set in detail. Q. Now, that meeting took place almost a year ago to the day,12th May 2016 . We are now in May 2017. You are able to remember it and that demonstrates, doesn't it, Mr Berry, that you both read and can remember the information in these packs? A. So I would like to clarify that exactly, because I think this is very important. The crux of these meetings were around the transaction. So that is one of the most poignant important facts that that was talked about at length. So the fact that the transaction was pretty much the main focus, yes, I can remember that because it was one of the biggest points. I just want to clarify that point.”
"Mr Vogels at paragraph 7 states I would have had access to information relating to the relative commercial strength and weaknesses of the IGBB across product lines, desks and geographies. He states I was provided with detailed information. This was in effect the commercial formula for what makes particular areas of the IDB successful."
"I go into more detail about the specific categories that Mr Vogels refers to in his statement, but to summarise response to these general points: "(a) to the extent that I in fact accessed or read such information, it did not stick in my mind because the information was so voluminous and detailed and most of it did not relate directly to my role of CEO of global e-commerce."
"To the extent that any detail did stick in my mind at the time, I would not have remembered it for long and would have forgotten it within a few weeks. I certainly do not remember it now."
"Mr Vogels at paragraph 7 states I would have had access to information relating to the relative commercial strength and weaknesses of the IGBB across product lines, desks and geographies. He states I was provided with detailed information. This was in effect the commercial formula for what makes particular areas of the IDB successful."
"I go into more detail about the specific categories that Mr Vogels refers to in his statement, but to summarise response to these general points: "(a) to the extent that I in fact accessed or read such information, it did not stick in my mind because the information was so voluminous and detailed and most of it did not relate directly to my role of CEO of global e-commerce."
"To the extent that any detail did stick in my mind at the time, I would not have remembered it for long and would have forgotten it within a few weeks. I certainly do not remember it now."
“It will be seen it is only if the Court finds that a “much less far-reaching” covenant would have afforded adequate protection is it likely to regard the existing restriction as unreasonable. The exercise is not a marginal one, otherwise Courts would be faced with a paralysing debate in every case about whether a covenant with x days shaved off would still provide adequate protection.”