In the EAT’s view, its decision was in accordance with Regulation 8(7), which seeks to bring about the rescue of a failing business when the alternative would be any prospective purchaser being deterred because of the effects of the protection afforded by TUPE. Each case will be determined on the individual facts and, if the EAT’s view is the correct one, will depend on the intention of the administrator regarding the transfer of an insolvent business. However, we would urge caution. This decision conflicts with guidance produced by the Department for Business, Enterprise and Regulatory Reform and may well be challenged.

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