The ECJ distinguished between those situations when the insolvency proceedings were aimed at liquidation of the assets and those situations when the aim, at an earlier stage, was to rescue the business.

The receiver of an insolvent company dismissed the entire workforce just one hour before the transfer of the business to a new undertaking. The new undertaking (the transferee) denied any liability under TUPE, as there were no employees at the actual time of the transfer.

Not only did the Regulations apply to someone employed immediately before the transfer, but they also applied to those who would have been so employed if they had not been unfairly dismissed for a reason connected to the transfer.

The question was whether a change in the management of an abattoir constituted a transfer of an undertaking. One needs to look at the situation before the transfer and identify an economic entity, then after the transfer to consider whether the economic entity has retained its identity.

Not only did the Regulations apply to someone employed immediately before the transfer, but they also applied to those who would have been so employed if they had not been unfairly dismissed for a reason connected to the transfer.

The question was whether the transfer of a school cleaning operation amounted to a transfer of an undertaking.

The ECJ distinguished between the transfer of an entity and the transfer of an activity.

An employee resigned from his employment on a Saturday and left immediately to take up another post. The individual returned to the original employer the following Friday, to recommence work.

The employee had continuity of employment as a result of there not being a week in which the contract of employment did not apply.