TUPE OR NOT TUPE?AN OVERVIEW OF THE TUPE REGULATIONS

NIGEL CREBBINPARTNER

nigelc@berg.co.uk

DD: 0161 817 2817

M: 07967753663

© Berg 2013

Academy Network10 October 2013

TUPE (1)

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)

Acquired Rights Directive (No. 2001/23)

TUPE (2)

First type of transfer:

A transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the UK to another person where there is a transfer of an economic entity which retains its identity

Economic entity means organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary

TUPE (3)

Second type of transfer:

Service provision change (SPC) – whether contracting out, changing contractor or contracting back in – where immediately before the SPC:•there is an organised grouping of employees situated in GB which has as its principal purpose the carrying out of the activities on behalf of the client ;•the client intends that following the SPC the activities will be carried out by the transferee (other than in connection with a specific event or task of short term duration); and•the activities do not consist wholly or mainly of supply of goods for the client’s use

Note – a share sale is not a TUPE transfer

TUPE (4)

Who transfers?

Employees

Employed by the transferor immediately before the transfer

Who do not object to the transfer

And are assigned to the organised grouping of resources or employees that is subject to the transfer

TUPE (5)

What transfers?

All the transferor’s rights, powers, duties and liabilities under or in connection with the contract of employment of the transferring employee

Any act or omission of or in relation to the transferor before the transfer is completed is deemed to have been an act or omission of or in relation to the transferee

Continuity of employment

Occupational pension scheme and insolvency exceptions

TUPE (6)

Automatically unfair dismissal:

Where the sole or principal reason for dismissal is the transfer itself; or

Where the sole or principal reason for dismissal is a reason connected with the transfer that is not an economic, technical or organisational (ETO) reason entailing changes in the workforce

TUPE (7)

Information and consultation:

Applies to all employees who may be affected by the transfer or may be affected by measures taken in connection with it

Trade union representatives if a trade union is recognised in respect of the affected employees

Otherwise, representatives appointed or elected by the affected employees

TUPE (8)

Information to be provided (in writing) by employer:• Fact transfer is to take place, date or proposed date of

transfer and reason for the transfer• Legal, economic and social implications of transfer for any

affected employees • Measures the employer envisages he/she will take in

connection with the transfer in relation to any affected employees (or statement that no such measures envisaged)

• If employer is transferor, measures he/she envisages the transferee will take in connection with the transfer in relation to any affected employees who will become employees of the transferee (or statement that no such measures envisaged)

To be provided long enough before transfer so as to enable consultation with the representatives to take place

TUPE (9)

Consultation

Employer of an affected employee who envisages taking measures in relation to an affected employee in connection with the transfer shall consult appropriate representatives of that employee with a view to seeking agreement to the intended measures

TUPE (10)

Information and consultation:

Special circumstances which render it not reasonably practicable

Penalty for failure – up to 13 weeks’ pay, uncapped

Joint and several liability of transferor and transferee

TUPE (11)

Employee liability information

To be provided in writing at least 14 days before transfer unless not reasonably practicable

Penalty £500 per employee (unless lesser sum would be just and equitable) and more if loss can be demonstrated

TUPE (12)

Restriction on varying employment contracts

Economic, technical or organisational (ETO) reason entailing changes in the workforce

TUPE

Disclaimer:

The laws in relation to the matters discussed in this presentation are complex. Neither the presentation itself nor any accompanying slides and handouts constitute legal advice and full legal advice should always be taken before acting.

TUPE OR NOT TUPE?AN OVERVIEW OF THE TUPE REGULATIONS

NIGEL CREBBINPARTNER

nigelc@berg.co.uk

DD: 0161 817 2817

M: 07967753663

© Berg 2013

Academy Network10 October 2013