A senior executive has failed to avoid garden leave by claiming his company was subject to a TUPE takeover after he resigned.

Dean Berry resigned from ICAP Management Services Ltd to join a competitor, BGB Services (Holdings) LLP.

ICAP put him on garden leave until the end of his notice period. ICAP was then taken over by another company in a share sale acquisition.

Mr Berry claimed this amounted to a TUPE transfer to which he objected. He claimed that under TUPE regulations, this would enable him to terminate his contract immediately, release him from his obligation to remain on garden leave and allow him to start working for his new company without further delay.

ICAP took legal action to enforce the garden leave.

The High Court rejected Mr Berry's arguments and held that a share sale does not involve a change of employer, as required for TUPE regulations to apply.

ICAP's business carried on in the same way as before the share sale and there was therefore no TUPE transfer for Mr Berry to oppose.

ICAP was granted an injunction to enforce the garden leave period.

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