However, in Millam v Print Factory (London) Ltd in 2007, the Court of Appeal found that TUPE had applied for a sale and purchase of shares. The reason was that, despite the sale of shares, McCorquodale Confidential Print Ltd gave the superficial impression that there had been no transfer of TUPE after having acquired the shares of Fencourt Printers Limited (for which Mr. Millam was working) after a simple sale. He noted that Mr. McCorquodale`s treatment of a substantial portion of Fencourt`s management withdrew its shares from those of a mere shareholder and that TUPE had therefore requested that Mr. Millam`s employment be moved from Fencourt to McCorquodale. In general, tupe is generally considered an applicability when the company or part of a business (or service) moves from Company A to Company B. However, when Company B takes over Company A by purchasing its shares, the identity of Company A does not change and TUPE generally does not apply. After the purchase, you can change the terms and conditions of their employees, as the provisions of the TUPE do not apply. It is important to recognize that the terms of sale cannot be changed unilaterally without consultation with the staff concerned.
While Mr Berry had announced his dismissal on a garden holiday, the shares of his employer`s parent company were sold to Tullet Prebon plc. Upon completion of the sale of the shares, Mr. Berry informed his employer that he believed that a transfer of TUPE had taken place, that he had raised areas against the transfer and that his employment had been terminated at the time of the transfer. ICAP obviously disagreed and sought and obtained an injunction to maintain the gardening holiday clause. However, this recent decision on EAT contributes to a growing case law in this area. Last year, in ICAP Management Services Ltd/Berry, the High Court found that “the transfer of shares is not in itself a transfer of TUPE, but may result in such a transfer.” This was in place in previous cases, it showed that caution should be exercised when a sale of shares is accompanied by a form of restructuring or restructuring, or where the new business owner takes steps to take control of the company`s business in another way (see Print Factory (1991) Ltd/Millam  ICR 1331 and Jackson Lloyd Ltd – Mears Group plc/Smith UKEAT/0127/13. In the United Kingdom, several cases have been reported in which integration measures taken immediately after the purchase of shares resulted in a transfer of TUPE, followed by requests from staff members. These include requests for non-information and recovery. In each of these cases, the question was whether the measures taken by the purchaser once completed had led to a “transfer” of a business or business within the meaning of TUPE. In any event, the situation was somewhat different, but the key was that, immediately after the conclusion of the acquisition of shares, substantial control over the acquired companies was transferred to the purchaser.
In one case, for example, the Objective Board ceased to be a separate entity immediately after the end of its activities; The buyer began to pay the acquired employees directly and assumed the entire distribution function of the target; and the acquired employees were informed that the objective would be “fully integrated with the buyer.” In another case, while a separate board of directors continued to work, all former directors resigned and were replaced by prospective purchasers once completed; It was immediately announced that there would be “integration,” including the complete replacement of the objective`s systems, policies and procedures by the objective`s systems, directives and procedures by the purchaser`s systems; The buyer`s management conducted the integration with the person responsible for the process report to the buyer`s general manager; and the management of the objective (including its new directors) did not contribute to the integration process, including the dismissal of various staff members from the target.