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TUPEWas there a relevant transfer - reg. 3(1)(a): business transfer, two limb-test:
* is there an economic entity?
* has the entity transferred?

* or Reg 3(1)(b) and reg 3(3) service provision changesEffect of relevant transfer (reg 4) - dismissal effective, liability may transfer (reg 4(3) and reg 7(1))Check eligibility

* one or two years' continuous employment; has there been a dismissal?
* was the dismissal due to the transfer (if not, apply UD rules vs transferor)?
* was there an ETO reason for workforce change?
* was dismissal handled fairly under s98(4)?

TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) REGULATIONS 2006 (SI 2006/246)?Regulations are to protect employees where there has been a transfer They should transfer to the new owner of the undertaking They should keep the original terms and conditions of their contracts

For this legislation to apply, the identity of the employer must change, such as;
? There must be a transfer from one person to another; there must be a change in the employer, not merely in the ownership WHEN DO THE
? A merger REGULATI
? A sale of assets of a going concern ONS
? Changes of franchise APPLY?
? Sale of a sole traders business
? Sale of a partnership
? Regulations can apply where the ownership of a company is transferred to a company operating outside the UK NOT: X If a person buys the controlling shares of a company, this is not a transfer of the Was the transfer the sole or principal business since the company itself has a legal identity and IT is the entity that reason for the employs dismissal?
the staff. X Neither does it apply to a transfer of assets only-e.g. upon insolvency, the receiver breaks up the business and sells off its assets to various buyers. X No transfer of liability of any person to be prosecuted for, convicted of and sentenced for any criminal offence

WAS THERE A RELEVANT TRANSFER (BUSINESS/SERVICES)?
IS THIS A BUSINESS TRANSFER?
'We must consider whether there is a relevant transfer. Under Reg 3(1)(a) a business transfer is a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the UK to another person where there is a transfer of an economic entity which retains its identity.
[TRANSFEROR] is transferring their business that is situated in the UK to [TRANSFEREE]
therefore this a business transfer under reg 3(1)(a)'.
- Whole or part of a business
- Economic entity
- Retains its identity

BUSINES S TRANSF ERS

PART 1 TEST: IS THERE AN ECONOMIC ENTITY COMPRISING AN ORGANISED GROUP OF RESOURCES?
Under Reg 3(2) an economic entity is an "organised grouping of resources which has the objective of pursuing an economic activity". On the facts, [TRANSFEROR] has an organised grouping of resources including...
a) Dedicated workforce b) Management structure c) How autonomous the entity from the rest of the business d) Equipment separate from the business e) Premises separate from the business (Cheesman V R Brewer Contracts [2001]) - lack of transfer of assets does not preclude a transfer Cheesman V R Brewer Contracts factors: a) Needs to be a stable and discrete entity whose activity is not limited to performing one specific work contract. b) Entity needs to be sufficiently structured and autonomous

c) Can be essentially based on manpower d) Identity emerges from factors such as workforce, management staff, and way the work is organised and operating methods Transfer can apply to part of an undertaking (Fairhurst Ward Abbotts Limited v Bates Building Limited (2004)) integration of transferor's business into transferee's business and the employees being integrated into [department ] still constitute a relevant transfer (Klarenberg v Ferrotron Technologies GmbH) PARTT 2 TEST: DOES THAT ENTITY RETAIN ITS IDENTITY AFTER THE TRANSFER?
? Consider Reg 3(1)(a) specifically 'which retains its identity'
- Apply Spijkers Gebroeder Benedik Abbatoir CV [1986]
- Necessary to look at all circumstances of the transaction including: All factors need to be taken into account: a) Type of business in question b) Whether there has been a transfer of tangible assets (Vans, remaining stock) c) Whether there has been a transfer of intangible assets (e.g. goodwill, databases) d) Whether staff taken over by new owner (how many - link to ECM v Cox) e) Whether customers transferred over to new owner (transferred customer database) f) Similarity between old and new operation (same merely incorporated into it) g) Duration of interruption to activity over the period of the transfer (straightforward takeover)
? If relevant consider motive (ECM v Cox) tribunal entitled to look at reason why employees were not transferred - could be majority of staff in terms of skill set (ie all the chefs) i. Only need to consider if the majority of the employees have not transferred over (less than half) i. Motive - was it to avoid TUPE? On the facts... no, the reason the majority are not going over is because PFL have enough workers not because they want to avoid TUPE. You would need to good evidence to show that they were trying to avoid it. CONCLUDE - THERE IS/IS NOT A RELEVANT TUPE TRANSFER Reg. 3(1)(b) " a service provision change, that is a situation in which(i) activities cease to be carried out by a person ('a client') on his own behalf and are carried out instead by another person on the client's behalf ('a contractor') (contracting out i.e. client to contractor); OR (ii) activities cease to be carried out by a contractor on a client's behalf...and are carried out by another person ('a subsequent contractor') (contractor to contractor); OR (iii) activities cease to be carried out by a contractor or subsequent contractor on a client's behalf...and are carried out by the client on his own behalf".(Contracting in - contractor to client) SERVICE PROVISI ON TRANSF ERS

Providing the conditions in paragraph (3) are satisfied. Reg.3(3)(a)...immediately before the service provision change(i) There is an organised grouping of employees situated in GB which has as its principal purpose the carrying out of activities concerned on behalf of the client; (ii) The client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; AND

(b) The activities do not consist wholly or mainly of the supply of goods for the client's use." IS THERE AN ECONOMIC ENTITY COMPRISING AN ORGANISED GROUP OF RESOURCES?
Reg 3(2) - "economic entity is an organised grouping of resources which has the objective of pursuing an economic activity..."
? 'An organised grouping of resources' a) Dedicated workforce b) Management structure c) How autonomous the entity from the rest of the business d) Equipment separate from the business e) Premises separate from the business FOCUS ON WHETHER THE CONTRACTING OUT IS FOR THE SAME THING
? Compare services provided by out-going contractor and transferee

Reg 2 - It will not be a service provision change if: (a) Contract is wholly or mainly for the supply of goods for the client's use (b) Activities carried out in connection with a single specific event or a task of short term duration (c) Client is not the same client

TIME OF TRANSF ER

Although in practice the time of the transfer may extend over a long period of time rather than being an event staged to take place at any one particular moment in time, the legal requirement for certainty means that an identifiable date is desirable.
? The ECJ held in Celtec v Astley [2005] that the use of the word 'date' (singular) in the Acquired Rights Directive combined with the need for legal certainty meant that the parties had to be able to point to a specific date on which it could be said that the transfer was effected.They reiterated that the Directive was intended to safeguard the rights and working conditions of employees at the time of transfer.And concluded that what was significant was to identify, "the date on which responsibility as employer for carrying on the business...in question moves from the transferor to the transferee."The House of Lords' judgment in the same case expanded this to; If the transfer is a sale of a business and there is a gap between the exchange of contracts and completion, it will be the date of completion, which is the date of transfer for the purposes of reg.4.

WHAT IS THE EFFECT OF RELEVANT TRANSFER?
(REG 4) - DISMISSAL EFFECTIVE (CONTRACT ENDS) BUT LIABILITY MAY TRANSFER (REG 4(3) AND 7(1)). BEFORE A RELEVANT TRANSFER STATE: 'The effect of the relevant transfer (Reg 4) is that all rights, powers, duties and liabilities under [NAME]'s contract transfer to new employer, [TRANSFEREE]. [NAME]'s dismissal remains effective but liability for claims may transfer (reg 4(3) and reg 7(1))'

REG 4

TUPE preserves the employment and transfers the employees and their contract to the transferee
? Reg 4(1) protects employees contracts and employment rights to the new owner (Jackson v Compushare Investment Services plc [2008])
? Reg 4(3) protects employees 'employed immediately before the transfer' o For the avoidance of doubt, an employee who is unfairly dismissed before the transfer does not transfer to the new owner. However, the employee's claim of unfair dismissal does transfer and will be brought against the new owner of the business.
? Reg 4(2) all rights, powers, duties and liabilities under employees' contracts transfer to new employer
? Reg 4(6) criminal liability the only exclusion
? Reg 4(3) employees also protected if unfairly dismissed under Reg 7 before the transfer

ON OR AFTER A RELEVANT TRANSFER STATE: 'The effect of the relevant transfer (Reg 4) is that all [NAMES] rights, powers, duties, terms & conditions and liability for claims transfers to [transferee]' REG 4

TUPE preserves the employment and transfers the employees and their contract to the transferee
? Reg 4(1) protects employees contracts and employment rights to the new owner
? Reg 4(2) all rights, powers, duties and liabilities under employees' contracts transfer to new employer
? Reg 4(6) criminal liability the only exclusion

CHECK FOR ELIGIBILITY - ELIGIBILITY FOR UNFAIR DISMISSAL (IF NOT ELIGIBLE, NO UFD CLAIM) MUST BE AN EMPLOYE E WHO HAS BEEN DISMISSE D

AND HAS THE REQUISIT E PERIOD OF EMPLOYM ENT EXCLUDED?

An employee is defined as: 'an individual who...works under...a contract of employment' (s.230(1) ERA 1996) i.e. engaged under a 'contract of service'

Under s.95(1) ERA 1996 which covers;
? Actual dismissal
? Termination of fixed-term contracts
? Termination of contract at the completion of a specific task
? Constructive dismissal (resigns due to employer repudiatory breach)
- Should consider using the grievance procedure set out in the Acas Code of Practice on Disciplinary and Grievance Procedures NB not resignation/mutual agreement/having their contract frustrated.
? 1 year = 12 calendar months if employer before 6 April 2012
? 2 years if employed after 6 April 2012
? Usually working 'continuously' for the same employerArmed forces

CLASSES

PRECEDE NT FOR UD???Police officer Share fishermen (paid a share of the profits of the earnings of the vessel) Employees knowingly working under illegal contracts.
[NAME] is an employee as they have an employment contract (s.230(1)).
[he/she] has the requisite period of continuous employment as [NAME] commenced work [YEARS] ago.
[NAME] is not part of an excluded class.
[NAME]'s employment was terminated by [ACTUAL DISMISSAL/CONSTRUCTIVE DISMISSAL]/

WAS THE TRANSFER THE SOLE OF PRINCIPAL REASON FOR THE DISMISSAL?
If the sole or principal reason for the dismissal was the transfer, Reg 7 provides that the dismissal is automatically unfair against the transferee unless there is an ETO entailing a change in the workforce.

GENE RAL

Reg 7(1): Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act as unfairly dismissed if the sole or principal reason for his dismissal is(a)The transfer itself; OR (b) A reason connected with the transfer that is NOT an economic, technical or organisational reason entailing changes in the workforce. Dismissal includes actual and constructive dismissal (Reg 4(11)) and for the purpose of the 2006 Regulations 'deemed' dismissal includes substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred (Reg 4(9)) considered in (Tapere v South London and Maudsley NHS Trust). AN employee who resigns in reliance on reg 4(9) CANNOT make a claim for notice pay. The employee should give notice and work it out (reg 4(11)). EMPLOYEE'S RIGHT OF OBJECTION If employee objects to transfer of their employment, their employment will be treated as terminated by operation of law and there is NO dismissal (Reg 4(7)(8)(11)). Employee will be regarded as having resigned (reg 4(7)(8)) unless the reason for the objection is that the transfer will involve a significant and detrimental change in working conditions (reg 4(9)) or the employee is alleging constructive dismissal (reg 4(11)). If an employee exercises this right, he will LOSE all his rights against both the transferor and transferee UNLESS he has been caused to resign by change in working conditions or a breach of contract by his employer.

BEFORE A RELEVANT TRANSFER

'...sole or principal reason...'

Not connected to the transfer: poor time keeping and absenteeism = misconduct, capability issues
? Dismissal is probably BECAUSE Of the transfer he was dismissed due to Transferee stating that Keith was surplus to requirements.
? If there is collusion between the transferor and the transferee with regard to the dismissal, the dismissal will be connected to the transfer and will automatically be unfair (Wheeler v Patel).
? Dismissal arising out of downturn in company - Downturn was directly linked to customers being put off by proposed sale of the business (transfer) therefore CONNECTED TO transfer 'Under Reg. 7(1), if an employee is dismissed (whether actually or constructively), or within the meaning of reg 4(9), and whether before or after the transfer) if the sole or

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