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EMPLOYMENT – TUPE 2
Has there been a transfer for the purposes of TUPE 2006? If no – if dismissed consider claims for statutory UD
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TRANSFERS Automatic Transfer Principle – Reg
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3 the transfer does not terminate employment contracts
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4(1) provides that
employment contracts 'shall have effect after the transfer as if originally made between the person so employed and the transferee'
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Employees transfer on same terms and conditions
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WHICH EMPLOYEES ARE AFFECTED? Employees
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*it also points out that to fall within the protection of TUPE, you had to have an employment contract "immediately before the transfer", r
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This was the issue in Litster v Forth Dry Dock, where a relaxed
and purposive interpretation was given
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*‘so long as they are assigned to the business/part transferred’ - Question of fact – case by case basis – mathematical approach (work out % time spent) and holistic approach (overall)
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Temporary assignments not covered - Botzen v Rotterdamsche Droogdok Maatshappij BV – they were assigned in a general capacity
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Effect of an objection: the employee’s contract of employment and the rights, powers,
duties, liabilities under or in connection with them will not transfer to the transferee
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*where an employee objects to the change in the identity of the employer, then r
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He is to be treated as if his contract terminated when the transfer takes place, but that he is not
dismissed (unless of course the employer actually does dismiss him), r
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This issue came up in Wilson v St Helens Borough Council
*Reg
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* Reg
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In the Humphreys case (University of Oxford v Humphreys (1) and
Associated Examining Board (2)) it was decided that an employee who resigns on or before a TUPE transfer because of well-founded fears that the new owner intends to impose worse terms and conditions of
employment than those provided by the original owner can claim constructive wrongful dismissal against the original owner
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*The cases: Katsikas v Konstantinidis, New ISG Limited v Vernon and Others (claimant objected to working for new company); Tapere v South London and Maudsley NHS Trust; Abellio London v Musse
& Others
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Following a transfer: Can a transferee change terms and conditions of employment? Better terms? Some better terms, some worse – overall employee better off?
n r
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' In r
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The normal rule is that even consensual agreements are void
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No “safe” time in the TUPE regs to change Ts and Cs
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This
is harsh for employers but there is a caveat
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BIS provides Guidance: Employment rights on transfer
of an undertaking (June 2009)
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There must be a dismissal: Actual/Constructive
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Cannot be justified
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BUT Can transferor rely on the Reg 7(2) defence? states that employees will be considered dismissed unfairly, if they are dismissed without the employer showing an economic, technical or organisational
reason for dismissal
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where there is an economic, technical or organisational (ETO) reason
for dismissals, these are considered 'substantial reasons' (i
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justified reasons) under the fair dismissal provisions of the Employment Rights Act 1996 (s
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reason must entail a change in the workforce
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If employer can argue successfully is the t and cs are changing due to one of those reasons there will not be a problem
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If no, dismissal will be automatically UD
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If yes, consider UD, transferor can rely on
permitted reason redundancy and some other substantial reasons (ERA 96)
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The result for the employee is that he is considered redundant, and thereby should receive a compensation payment if they have been an employee for more than two years under s
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importantly,
an employee dismissed by the seller of the business is deemed to have been dismissed by the purchaser too
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*After TUPE transfer, there is usually a period of harmonization: Campbell v Martin McColl Ltd (even though waited a year, still void as related to transfer) , Credit Suisse First Boston (Europe) v Lister
(again void, even though employees seemed satisfied with conditions), Taylor v Connex South Eastern Ltd, Regent Security Services Ltd v Power, Manchester College v Hazel
AUTOMATIC ID: If dismissed by reason of the transfer…It’s automatically unfair…Unless it’s for an ETO entailing a change in the workforce
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(dismissing chief executive is not a ETO reason)
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Union Representative or Elected Representatives, of the AFFECTED
employees will negotiate on their behalf
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Long enough before the transfer to allow adequate consultation with a view to reaching agreement
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REMEDIES: For employee: UD claim (compensation); re-engagement/re-instatement; declaration of void contract variation; failure to inform and consult – up to 13wks pay
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*In practice: in the contract between old and new company they write warranties and indemnities used to allocate liabilities between the parties
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EVALIUATION: The benefits to individual workers is clear; TUPE prevents the possibility of everybody in the firm losing their jobs, just because the company providing the service changes
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A side-effect of the new regulations could prove unfortunate for some employers
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// According to the The Law
Society Gazette, law firms might be forced to employ teams of lawyers when taking over contracts
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// Objections to the new regulations had been raised during consultation
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In
2012, the UK coalition Government sought feedback on the efficacy of TUPE in relation to professional services and found that there were “mixed views” about whether professional services should continue to
be covered by the service provision change regime
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However, lawyers have highlighted problems
with the operation of the New Zealand equivalent of TUPE and warned the Government to be cautious in trying to exclude certain groups of employees
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An
employee might not want to transfer to the new employer
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They must either transfer
against their will, or resign their employment
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It is therefore vital that organisations have the correct management systems and legal support in place from the start

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