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Transfer Of Undertakings Notes

LPC Law Notes > Employment Law Notes

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Transfer of Undertakings o

Transfer of Undertakings (Protection of Employment) Regulations 2006 relevant transfer:a business transfer (undertaking transferred) - Reg. 3(1)(a) EXCLUDES SHARE TRANSFERS

1. Transfer of economic entity (Reg. 3(2) - can comprise just one person);

2. Economic entity must retain its identity after the transfer Spijkers: consider 1. i. Type of business; ii. Transfer of tangible assets; iii. Transfer of customers iv. Majority of staff taken over v. Degree of similarity between outgoing business and incoming one vi. Duration of any interruption
? service provision change (e.g. company changes office cleaning contractor) - Reg. 3(1)(b)

1. Where activities outsourced for the first time from client to a third party

2. Subsequent outsourcing (from one third party to another)

3. Insourcing (from third party back to client) Activities post-transfer must be fundamentally the same as pretransfer (Reg. 3(2A)) Satisfy Reg. 3(3)(a)(i): must be an organised grouping of employees in the UK, principally carrying on activities for employer.
? Must be a conscious effort to organise employees (Eddie Stobart Ltd v Moreman & Seawell Ltd v Ceva Freight) Exceptions: Regulation 3(3) (a)(ii): client intends to use contractor for a specific event/task of short term duration; (b): activities consist wholly or mainly of the supply of goods for the client's use.?

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Botzen v Rotterdamsche: court will look at an employee's function rather than the terms of his/her contract to determine if employee works in part of the business being transferred. Duncan Webb v Cooper: in determining if employee assigned consider: amount of time, value given, contractual terms, allocation of cost of services

Effect:

1. employees employed Transferor immediately before the TUPE transfer/would have been so employed had they not been unfairly dismissed automatically become employed by Transferee from the time of transfer on the same terms - Reg. 4(1) & (3) Reg. 4(7): employee can object, they will not be treated asdismissed by the seller and will not have any right to claim unfair dismissal, subject to:Reg. 4(9) - resign if substantial detrimental changes to working conditions & Reg. 4(11) - constructive dismissal (Oxford University v Humphreys) Reg. 4(2): rights, duties, powers and liabilities undercontracts of employment as well as anything done in respect of

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