tupe david's ppp v3
TRANSCRIPT
UNISON WORKSHOP
TUPE
AN INTRODUCTION
WHAT IS TUPE?• Transfer of Undertakings (Protection of
Employment) Regulations 2006 - came into force on 6 April 2006.
• TUPE is derived from European Community law, to fulfil the UK’s obligations under the EC Council Directive 77/187 (Acquired Rights Directive)
TUPE operates to preserve an employee’s statutory and contractual employment rights that the employee had before the transfer.
TUPE provides that …the new employer simply steps into the shoes of the old employer.
TUPE 2006, Regulation 4(1)
WHAT IS PROTECTED?
• All the old employer’s rights, powers, duties and liabilities
• Continuous employment• Collective agreements• Recognition• All contractual rights• Minimal occupational pension
When does TUPE apply?
Relevant Transfer = • ‘Transfer of Undertaking’
or• ‘Service Provision Change’
• Has the undertaking retained its economic identity; and
• is it carried on by
the transferee?
• Transferee has Liability for any discrimination or other breaches by Transferor
• Claims against transferor and transferee:– Unfair dismissal– Unlawful deduction of wages– Unlawful dismissal– Failure to inform and consult.
TUPE and Claims
Unfair Dismissal
• Employee must have worked 2 Years for transferor or transferee before making claim
• Dismissal for reason connected with transfer
• ETO reason entailing changes in the workforce
ETO
• Terms and conditions may be changed before or after transfer if......
• Economic, Technical or Organisational reason entailing changes in the workforce.
No Statutory Definition of ETO But....
• Economic reason = Profitability or market performance
• Technical reason = Equipment or production process
• Organisational reason = Management or organisational structure
• Above must entail changes in the workforce.
ETOEconomic, Technical and Organisational reason entailing changes in the workforce
Hardy v Meter U
• Claims must be brought 3 months less one day of the transfer for most discrimination and for unfair dismissal claims.
• Equal pay claims must be brought within 6 months of a TUPE transfer.
Objection to transfer = • Termination of employment• No dismissal (Regulation
4(7) & (8)) so no right to redundancy payment.
Unlawful deduction of Wages claims
• Failure to honour terms in contract;
• Harmonisation of terms and conditions after the transfer
POST TRANSFER HARMONISATION
• Why?• Is it connected with
the transfer?• If not, it is
permissible.
Under Regulation 13(1), the employer must inform trade unions of the following matters:– The fact that the transfer is to take place;– The approximate date of the proposed transfer;– The reason for the proposed transfer;– The legal, economic and social implications of
the transfer for the affected employees; and– Any measure which the old or new employer
will take as a result of the transfer, or if no such measures will be taken, this should be stated.
Measures
A “Measure” means an action which the employer or transferee intends to implement and it does not include a vague idea of future arrangements (Regulation 13(2)).
FAILURE TO INFORM AND CONSULT =
MAXIMUM OF 13 WEEKS PAY PER EMPLOYEE
QUESTIONS?