Introduction

The Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) were introduced to protect the rights of employees on the transfer of the business in which they are employed. TUPE was originally enacted to comply with a European Directive known as the Acquired Rights Directive (Council Directive 2001/23/EC).

The current coalition government views TUPE, and in particular, the protection it gives to outsourced workers, as a burdensome barrier to its public sector outsourcing plans. Significant changes to TUPE became law on 31 January 2014, paving the way for yet more public sector outsourcing, signalled, for example, by the invitation in December 2013 for private sector bids on a further £177 billion of pipeline public sector contracts over 19 areas including financial services, fire services, ICT, police service, probation and offender management, construction and “welfare to work”.

These changes to TUPE are being made through new regulations, known as the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which amend the existing law and affect all transfers taking place on or after 31 January 2014.

Although the changes are not as extensive as unions feared at the start of the government’s consultation in early 2013 (they do not, for example, remove the regulations governing service provision change) even so, they significantly dilute the protection provided by TUPE, making it easier and quicker for employers to cut pay and other terms and to dismiss workers. Several of the changes amount to a direct attack on collectively agreed terms and on the machinery of collective bargaining, prompting TUC general secretary Frances O’Grady to describe them as a “blatant attack on the ability of unions to represent working people.”

Against this background, union reps will continue to play a vital role in organising and protecting the interests of their members in the lead up to a transfer and in the new workplace. This clearly written LRD legal guide is a key resource detailing what reps need to know about the key features of the new TUPE regulations. The booklet covers:

• how TUPE applies to transfers before 31 January 2014;

• how TUPE applies to transfers on or after 31 January 2014;

• the latest TUPE key cases; and

• the key features of TUPE from the practical perspective of trade union reps and members.

Chapter 1 provides an overview of the TUPE regulations and a summary of the changes to TUPE. Subsequent chapters provide more detail about how each regulation is applied and the implications of any changes to the law.

This latest booklet is one of a series of essential LRD guides to using the law for union reps. Contracts of employment and Redundancy law were both published in 2013. The guides are not intended to be comprehensive, but set out to give reps and individuals a broad overview of their legal rights, so that they know what questions to ask and to help them navigate their way around a very complex area of law, of critical importance to trade unions and their members.

Case references are provided throughout this booklet. Most judgments of the Employment Appeal Tribunal (EAT), the Court of Appeal, the Supreme Court, the European Court of Justice (ECJ) and the European Court of Human Rights are free to download from the website of the British and Irish Legal Information Institute: www.bailii.org

EAT judgments are legally binding on tribunals. The EAT can be overruled by the Court of Appeal, who in turn can be overruled by the Supreme Court. Judgments of the ECJ interpreting the Acquired Rights Directive are binding on all UK Courts.

All statutory regulations can be downloaded from the government website: www.legislation.gov.uk

Government guidance on TUPE is free to download from the website of the Department for Business, Information and Skills (BIS). The guidance: A guide to the 2006 TUPE Regulations (as amended by the Collective Redundancies and Transfer of Undertaking Protection of Employment) (Amendment) Regulations 2014) for employees, employers and representatives, was issued in January 2014. The previous guidance, from 2009, may still be relevant for transfers that took place before 31 January 2014, although it has not been updated to take account of changes through case law explained in this LRD guide. Employment tribunals do not have to follow the BIS guidance.

https://www.gov.uk/government/publications/tupe-a-guide-to-the-2006-regulations