Introduction

The Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) were introduced to protect the rights of existing employees on the transfer of the business in which they are employed. The TUPE Regulations have a reputation as one of the most complex and uncertain areas of employment law. However, at a time of widespread uncertainty and change, all reps should aim to have at least a basic understanding of TUPE, especially a grasp of the events that trigger the Regulations and the scope of the protection TUPE provides.

The TUPE Regulations are based on a piece of European law known as the Acquired Rights Directive (now consolidated as Directive 2001/23/EC). They were first enacted in 1981 but substantially amended in 2006.

We are in the middle of a period of unprecedented escalation in the overall number of tribunal claims. Across all jurisdictions, 392,800 claims were lodged in 2009-10, up from 266,500 for 2008-09. Over this period, claims for failure to inform and consult under TUPE grew from 1,300 in 2008-09 to 1,800 in 2009-10. Many other TUPE-related claims such as unfair dismissal and redundancy are hidden in the headline statistics.

The previous Labour government’s aim, according to its published Guidance to the 2006 TUPE Regulations, was that: “Ideally, everyone should know where they stand when a business sale or reorganisation, or a contracting-out or similar exercise, takes place, so that employers can plan effectively in a climate of fair competition and affected employees are protected as a matter of course”. Sadly, few reps would agree that this aim has been met, and few HR practitioners claim to have a clear understanding of the Regulations.

This booklet sets out to focus on those aspects of TUPE which are of the most practical importance to trade union reps. It is not intended as a comprehensive legal guide but attempts to give reps and individuals an overview of their rights.

Chapter 1 provides an overview of the Regulations. Subsequent Chapters provide more detail about how each regulation is applied.

Case references are provided throughout this booklet and judgments referred to can either be found online or in the Industrial Relations Law Reports (IRLR).

• Employment Appeal Tribunal (EAT) judgments are available at www.employmentappeals.gov.uk

• Court of Appeal judgments are available at www.courtservice.gov.uk

• House of Lords judgments judgments are available at www.publications.parliament.uk

Because these Regulations have to comply with European law, courts and tribunals deciding cases must take into account the European directive and decisions of the European Court of Justice (ECJ). Decisions of the ECJ can be found at: www.bailii.org/eu/cases/EUECJ/.

The Regulations (Statutory Instrument 2006 No. 246) are available online from the Office of Public Sector Information at: www.opsi.gov.uk/si/si2006/20060246.htm.

In June 2009, the Department for Business, Innovation and Skills (BIS) issued fresh guidance on the 2006 TUPE Regulations: A guide to the 2006 TUPE regulations for employees, employers and representatives. It is available to download from the Department’s website at http://www.berr.gov.uk/files/file20761.pdf.