LRD Booklets February 2014

TUPE - a guide to using the law for union reps

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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 ...
Open access

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 ...
Subscribers only

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 ...
Subscribers only

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 ...
Subscribers only

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 ...
Subscribers only

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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