LRD Booklets February 2014

TUPE - a guide to using the law for union reps

Significant changes to the TUPE regulations became law on 31 January 2014. The changes dilute the protection offered by TUPE, making it easier and quicker for employers to cut pay and other terms and to dismiss workers. Union reps will continue to play a vital role organising and protecting the interests of their members on a transfer of undertakings and this updated guide to using the law is a key resource for them. It explains exactly what has changed and what has remained the same; highlights the latest key TUPE cases and summarises the most important features of TUPE from the practical perspective of trade union reps and members.

Introduction

Introduction [pages 5-6] (745 words)

The Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) were introduced to protect the rights of employees on the transfer of ...
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Chapter 1

1. OVERVIEW OF THE TUPE REGULATIONS [ch 1: page 7] (199 words)

The Transfer of Undertakings (Protection of Employment) Regulations 1981 were originally introduced in 1981 to comply with the European Union ...
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TUPE in summary [ch 1: pages 7-8] (245 words)

How do employment tribunals interpret TUPE? [ch 1: page 8] (478 words)

When does TUPE apply? [ch 1: page 9] (81 words)

Consultation and collective rights [ch 1: page 9] (200 words)

How does TUPE affect terms and conditions? [ch 1: pages 9-10] (115 words)

Changes to terms and conditions [ch 1: page 10] (105 words)

The effect of TUPE on contractual rights and obligations [ch 1: page 10] (149 words)

Refusal to transfer [ch 1: page 10] (45 words)

Unfair dismissal rights [ch 1: page 10] (73 words)

TUPE and insolvency [ch 1: page 11] (70 words)

The key changes to TUPE in 2014 [ch 1: pages 11-12] (628 words)

Chapter 2

2. WHEN DOES TUPE APPLY? [ch 2: page 13] (75 words)

TUPE rights do not apply to every change of employer. Broadly speaking, the greater the similarity of the activities carried out before and after the ...
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Relevant transfers [ch 2: page 13] (150 words)

Business transfers [ch 2: pages 13-14] (251 words)

What if no employees transfer? [ch 2: page 14] (169 words)

Can you have a business transfer involving only one person? [ch 2: page 14] (91 words)

What about share sales? [ch 2: page 14] (58 words)

For TUPE to apply, must there be a formal transaction, like a sale or merger? [ch 2: pages 14-15] (160 words)

Service provision changes [ch 2: page 15] (265 words)

When will there be a service provision change? [ch 2: page 15] (71 words)

The “fundamentally and essentially the same” test [ch 2: pages 16-17] (896 words)

What about changes due to modernisation and innovation? [ch 2: pages 17-18] (181 words)

What about changes to the quantity rather than the type of activities? [ch 2: page 18] (210 words)

Case law on whether a service provision change has taken place [ch 2: pages 18-20] (718 words)

Must activities have ceased completely before the transfer date? [ch 2: page 20] (150 words)

Can there be a TUPE transfer if operations come to a temporary halt? [ch 2: page 20] (91 words)

What if the identity of the client changes? [ch 2: page 20] (70 words)

Statutory exceptions limiting service provision change [ch 2: page 20] (67 words)

When do activities consist wholly or mainly of the supply of goods? [ch 2: pages 20-21] (171 words)

What is meant by “single specific event or task of short-term duration”? [ch 2: pages 21-22] (446 words)

What if only part of a business is transferred? [ch 2: page 22] (90 words)

What if the business is outsourced to more than one provider? [ch 2: page 22-23] (296 words)

What is service fragmentation? [ch 2: page 23] (404 words)

Does TUPE extend to situations involving outsourcing beyond the UK? [ch 2: pages 23-24] (124 words)

When will the transfer take place? [ch 2: page 24] (156 words)

Can the transferor, the transferee or the employees contract out of TUPE? [ch 2: page 24] (158 words)

Transfers within public administration [ch 2: pages 24-25] (350 words)

Chapter 3

3. WHO TRANSFERS TO THE NEW EMPLOYER? [ch 3: page 26] (44 words)

Another difficult question for those caught up in a transfer is exactly who transfers and who does not, and what choices, if any, employees and ...
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Only employees transfer [ch 3: page 26] (132 words)

What if you are dismissed immediately before the transfer? [ch 3: page 26] (117 words)

Must you be directly employed by the transferor for your employment to transfer? [ch 3: pages 26-27] (231 words)

Who belongs to the “assigned grouping”? [ch 3: pages 27-28] (720 words)

Workforce reorganisation in the run up to a transfer [ch 3: pages 28-29 (213 words)

The Retention of Employment Model [ch 3: pages 29-30] (607 words)

What about employees off sick or on statutory or contractual leave at the transfer date? [ch 3: pages 30-31] (131 words)

What if an employee is only temporarily assigned? [ch 3: page 31] (79 words)

What about employees reinstated under an interim relief order? [ch 3: page 31] (92 words)

What if an employee is dismissed pre-transfer and reinstated post-transfer? [ch 3: page 31] (123 words)

Objecting to a transfer [ch 3: pages 31-32] (219 words)

Transfer causing substantial detrimental change [ch 3: page 32] (395 words)

Changes in work location [ch 3: page 33] (307 words)

Checklist [ch 3: page 33] (145 words)

Chapter 4

4. CONSULTATION RIGHTS [ch 4: page 34] (374 words)

Workplace representatives are entitled to be informed about a transfer before it takes place and to be consulted if changes are envisaged as a result ...
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Employers’ duty to provide information to representatives [ch 4: pages 34-35] (344 words)

Is there a duty to inform even if there is no duty to consult? [ch 4: pages 35-36] (142 words)

When and how must the statutory information be provided? [ch 4: page 36] (62 words)

When is the duty to consult on TUPE measures triggered? [ch 4: page 36] (231 words)

Is there a specific date by which consultation should have started? [ch 4: pages 36-37] (159 words)

What about TUPE consultation after the transfer? [ch 4: page 37] (140 words)

What are “measures”? [ch 4: pages 37-38] (500 words)

Is there an obligation to consult under TUPE even if the transfer does not go ahead? [ch 4: page 38] (88 words)

Who are the “affected employees”? [ch 4: pages 38-39] (395 words)

Who are the appropriate reps? [ch 4: page 39] (42 words)

Representation where there is no recognised union [ch 4: page 39] (64 words)

Challenging the status of a non-union representative body [ch 4: pages 39-40] (179 words)

Changes to the consultation duties of micro-businesses [ch 4: page 40] (85 words)

Is there a minimum number of employees who must be “affected” before the information and consultation obligations are triggered? [ch 4: page 40] (50 words)

What is the process for electing representatives under TUPE? [ch 4: pages 40-41] (451 words)

What facilities must be provided? [ch 4: pages 41-42] (131 words)

The rules on time off for reps [ch 4: pages 42-43] (367 words)

Duty to consider and respond to representations [ch 4: page 43] (32 words)

Statutory protection of reps [ch 4: page 43] (93 words)

What if the employer misinterprets the effect of TUPE? [ch 4: pages 43-44] (306 words)

Does the duty to inform and consult extend to outsourcing beyond the UK? [ch 4: page 44] (170 words)

Is there any statutory duty on transferor and transferee to consult with each others’ workforce before the transfer, as opposed to their own? [ch 4: page 44] (81 words)

Pre-transfer consultation on collective redundancies [ch 4: pages 44-46] (590 words)

Practical implications of pre-transfer collective redundancy consultation [ch 4: page 46] (149 words)

Faster dismissals likely for relocation redundancies [ch 4: pages 46-47] (189 words)

Penalty for failing to inform and/or consult under TUPE [ch 4: page 47] (31 words)

Who can bring the claim? [ch 4: page 47] (262 words)

The time limit for a claim [ch 4: page 48] (42 words)

Who is liable for a failure to inform and/or consult? [ch 4: page 48] (205 words)

What defences are available to an employer who fails to inform and/or consult? [ch 4: page 48] (171 words)

Calculating the protective award [ch 4: page 49] (288 words)

Protective awards are supposed to punish the employer [ch 4: pages 49-50] (252 words)

Can data protection concerns justify failing to inform or consult? [ch 4: page 50] (158 words)

Can commercial sensitivity concerns justify failing to inform or consult? [ch 4: page 50] (136 words)

Can claims for a protective award be compromised? [ch 4: page 50] (51 words)

What if the employer fails to pay the compensation awarded by the tribunal? [ch 4: page 51] (206 words)

Duty to provide employee liability information [ch 4: page 51] (145 words)

Industrial action [ch 4: pages 51-52] (145 words)

Checklist for union representatives [ch 4: page 52] (160 words)

Chapter 5

5. THE EFFECT OF TUPE ON TERMS AND CONDITIONS [ch 4: page 53] (535 words)

The basic purpose of TUPE is to protect employees’ terms and conditions when their employment transfers to a new employer. This is achieved by ...
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Government attitudes to Europe and TUPE [ch 5: page 54] (247 words)

The effect of a contract variation that breaches TUPE [ch 5: pages 54-55] (461 words)

Changes to Regulation 4 by the 2014 Regulations [ch 5: pages 55-56] (171 words)

All transfers on or before 30 January 2014 [ch 5: page 56] (86 words)

All transfers on or after 31 January 2014 [ch 5: page 56] (208 words)

Changes permitted by an express contract term [ch 5: pages 56-58] (623 words)

Collectively agreed terms [ch 5: page 58] (243 words)

Transfers on or before 30 January 2014 [ch 5: pages 58-59] (104 words)

Transfers on or after 31 January 2014 [ch 5: page 59] (127 words)

Commentary [ch 5: pages 59-60] (512 words)

Sector level collective agreements under new TUPE [ch 5: pages 60-61 (172 words)

Alemo-Herron [ch 5: pages 61-62] (464 words)

Contract changes for a reason unconnected to the transfer [ch 5: page 62] (127 words)

Changes to non-contractual working practices due to transfer [ch 5: page 62] (84 words)

Changes for an ETO reason [ch 5: pages 62-63] (333 words)

Relocation [ch 5: page 63] (40 words)

Redundancy [ch 5: page 63] (125 words)

Significant changes to job roles or duties [ch 5: pages 63-64] (387 words)

Can transferring staff rely on TUPE to ask for better benefits? [ch 5: page 64] (91 words)

What about changes to the contract terms of new joiners? [ch 5: page 65] (186 words)

How long are terms protected? [ch 5: page 65] (193 words)

Recognition agreements [ch 5: pages 65-66] (284 words)

Pensions under TUPE [ch 5: page 66] (52 words)

Early retirement benefits [ch 5: pages 66-67] (335 words)

Pensions [ch 5: pages 67-68] (192 words)

TUPE and pensions auto-enrolment [ch 5: page 68] (148 words)

Fair Deal for pensions [ch 5: pages 68-69] (463 words)

TUPE and migrant workers [ch 5: page 69] (80 words)

Chapter 6

6. UNFAIR DISMISSAL RIGHTS [ch 6: pages 70-71] (391 words)

Dismissals in the context of a TUPE transfer are subject to the general law of unfair dismissal and redundancy. In addition, Regulation 7 of TUPE ...
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Dismissal “for a reason connected with the transfer” [ch 6: pages 71-72] (575 words)

Dismissal for an economic, technical or organisational reason [ch 6: page 72] (120 words)

Can a transferee rely on the transferor’s ETO reason? [ch 6: pages 72-73] (290 words)

Resigning due to a substantial change in working conditions [ch 6: page 73] (90 words)

Claims for constructive dismissal [ch 6: page 73] (56 words)

Claims for wrongful dismissal [ch 6: page 73] (30 words)

Who should a claim be brought against? [ch 6: pages 73-74] (132 words)

Time limit [ch 6: page 74] (44 words)

Can an employee whose employment does not transfer claim unfair dismissal under TUPE? [ch 6: page 74] (86 words)

How long does TUPE protection against dismissal last? [ch 6: page 74] (67 words)

Tribunal fees [ch 6: page 74] (113 words)

Chapter 7

7. INSOLVENCY [ch 7: page 75] (123 words)

Special rules apply under TUPE where a business is insolvent. The rules, found in Regulations 8 and 9, are aimed at encouraging a rescue culture and ...
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Asset sales [ch 7: page 75] (216 words)

TUPE and insolvent administration [ch 7: pages 75-76] (143 words)

Varying contract terms in an insolvent administration [ch 7: page 76] (197 words)

Further information

Further information [page 77] (687 words)

Copies of relevant statutes can be obtained online at: www.legislation.gov.uk ...
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