your guide to tupe legislation
TRANSCRIPT
Your Guide to TUPE Legislation By: Caroline Acton On: 17th February 2015 @ 13:00
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TUPE overview 17th February 2016
Caroline Acton
Disclaimer These materials and the information contained within them are designed solely for the use of participants on our courses. These materials shall not be copied or reproduced in any format whatsoever without the prior consent of Consilia Legal LLP. The content of these materials and any commentary on the law contained within the materials is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author, the publisher or Consilia Legal LLP. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter.
TUPE Overview
• Legislation
• When does TUPE apply
• Automatic transfer principle
• Employment Rights & Liabilities
• Employee Liability Information
• Obligations to Inform and Consult
• Changes to terms and conditions
• Protection against dismissal
Legislation
• Transfer of Undertakings (Protection of Employment) Regulations 2006
• Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014
When does TUPE apply?
Applies to a relevant transfer:
• Transfer of a business, undertaking or part of a business undertaking:
- An economic entity
- Transfer of that economic entity
- The economic entity retaining its identity following the transfer
NB does not apply to share sales
When does TUPE Apply?
2. Service Provision Change
- A contractor takes over activities from a client (outsourcing)
- A new contractor takes over activities from another contractor (re-tendering)
- A client takes over activities from a contractor (in-sourcing)
Service Provision Change
• An organised grouping of employees
• Employees assigned to the group
• The client should remain the same
• The activities should not become overly fragmented
• The activities should remain fundamentally the same
Automatic Transfer Principle
• Business Transfer – all employees engaged by the outgoing employer automatically transfer
• Service Provision Change – employees assigned to the organised grouping of employees automatically transfer
Employment Rights & Liabilities
• Contracts of employment –all terms and conditions
• Continuity of service
• Accrued entitlements - holiday
• Liability for the outgoing employers acts
Employee Liability Information
Outgoing employer to provide not less than 28 days before the transfer:
• Identities of the transferring employees
• Age of the transferring employees
• Employment particulars
• Active/live disciplinary/grievance records
• Any collective agreements
• Any outstanding claims
Employee Liability Information
• Failure to provide information – consequences?
• Due diligence?
• Indemnities and warranties
Obligations to inform
• Both the outgoing and incoming employer must inform all employees affected by the transfer.
• Recognised trade union or employee representatives
• Micro-businesses
• In writing and include:
- information about the transfer
- any measures
Obligations to Consult
• Employers must consult with recognised trade unions or elected representatives about measures which they are considering taking.
• Measures can include:
- redundancies
- workplace relocation
- changes to staff pay dates
- different working patterns
Failure to inform/consult
Either or both employers can be liable for compensation of up to 13 weeks gross uncapped pay for EACH employee affected.
The award is 13 weeks in total, it is not 13 weeks per employer – so if both are found liable they share the amount.
Changing terms of employment
• TUPE Protects against changes/
harmonisation
• Changes will be void unless:
- The terms of the contract permits the change
- The reason for the variation is an ETO reason, entailing changes in the workforce
• Change in the location of the work?
Protection against Dismissal
• Qualifying service
• Who is covered?
• Enhanced protection against dismissal
• If the sole or principal reason for the
dismissal is the transfer - automatically unfair
• Dismissals for ETO reasons may be fair
• NB Employees who object to the transfer
Questions
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