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TUPE
“Where are we now?”
Richard Arthur
Kate Ewing
Thompsons Solicitors
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Government Policy
• Extended coverage of TUPE;
• Cabinet Office Statement of Practice; and
• Case-specific legislation using powers in
s.38 Employment Relations Act 1999
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TUPE 2006
• Wider coverage-”service provision
changes”;
• Changes to terms and conditions and
dismissals in connection with a transfer;
• Insolvency;
• “Employee liability information”; and
• Information and consultation.
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Service Provision Changes
• “Activities” cease to be carried out by a
client/contractor;
• “Organised grouping of employees” whose
“principal purpose” is the carrying out of
the activities;
• Not in connection with a “single specific
event or task of short duration” and
• Activities not wholly or mainly the supply of
goods or services.
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COSOP (November 2007)
• Cabinet Office Statement of Practice;
• Covers public private partnerships, second and
subsequent generation contracting,
reorganisations of the public sector and within
the Civil Service;
• Principles of TUPE should be followed;
• “Attempts to orchestrate a non-TUPE situation
will not be tolerated”;
• Limited exceptions; and
• A “Fair Deal for Staff Pensions”.
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Local Authority Contracts
• Code of Practice on Workforce Matters in
Local Authority Service Contracts;
• Application of TUPE;
• Protection against “two-tier” workforce;
• S.19(4) LGA 1988-best value authority
shall “have regard to” guidance issued by
Secretary of State; and
• Local Authority must have a cogent reason
for not following the Code.
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Case Specific Legislation
• Local Government Structural and Boundary
Change in England (Staffing) Regulations 2008;
• Local Transport Bill;
• “TUPE shall apply to the transfer of
functions………”;
• As opposed to “staff will transfer as if TUPE
applied”; and
• Compliance with guidance issued by Secretary
of State.
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Transfers overseas
• Holis Metal Industries Limited v GMB and
another [2008] IRLR 187;
• Transfer of a business in Tamworth to
Israel;
• TUPE capable of applying to transfers to
other countries, inside and outside the EU;
• Note information and consultation
opportunities.
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Contractual changes
• If the sole or principal reason for the variation is
(1) the transfer itself or (2) a reason connected
with the transfer that is not an ETO reason, the
variation is void;
• ETO reason “…..entailing changes in the
workforce”;
• Change in headcount or job description;
• Variations permitted where the reason is
connected with the transfer, and is an ETO
reason;
• Does that comply with the ARD?
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Information and Consultation
• “Long enough before the transfer to
enable consultation to take place…”;
• Fact of transfer, date and reasons;
• Legal, economic and social implications
for affected employees;
• “Measures” old employer envisages it will
take; and
• “Measures” old employer envisages new
employer will take
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Information and Consultation
• “Affected employees”-any employee who
may be affected by the transfer, regardless
of whether they actually transfer;
• Election of employee representatives;
• “Measures”: any changes to existing
working practices or arrangements.
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Information and Consultation
• Obligation to consult only where employer
envisages taking “measures”;
• Employer must consider union’s
representations and reply to them;
• With a view to reaching agreement;
• Up to 13 weeks’ pay per affected
employee;and
• Award is punitive.
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Equal Pay
• Time limits: 6 months from the date of
leaving employment with the transferee:
• Gutridge v Sodexho, Joss and others v
Cumbria County Council;
• Can make a comparison post transfer with
comparator still employed by old
employer: Armstrong v Newcastle Upon
Tyne Hospitals Trust.
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The Future
• European Commission to consult on the
implications of transnational transfers;
• The UK Government has clearly spelled
out that it will seek amendments to the
ARD to permit harmonisation of terms and
conditions.
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Share Transfers
• Private Equity (Transfer of Undertakings
Protection of Employment) Bill;
• No change in the identity of the employer;
• Applies to transfers of controlling
shareholdings;
• Information and consultation; and
• Injunctions.
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