Tupe Transfer Of Undertakings Notes

Transfer of Undertakings (Protection of Employment) Regulations 2006

Employment consequences

• Where there is a relevant transfer (from one person to another, not just change of ownership) there will not be an automatic termination of the employment simply by reason of the transfer itself. The employee will instead transfer to the new employer and the contractual terms will remain the same.

• Dismissals will be automatically unfair unless there is a genuine redundancy – i.e. a economic, technical, or organisational reason for the dismissal (“ETO”)

• Doesn’t apply to share transfers, takeovers, asset-only purchases or majority shareholder change

• Reg 4(3) – applies to any individuals who were:

  • Employed by the transferor immediately prior to the transfer to transferee (or would have been had they not been dismissed by reason of a transfer related reason – dismissal effective, liability transfers to transferee)

  • Assigned to the relevant group of employees transferring (no transfer to employees temporarily assigned to a particular undertaking)

TUPE Dismissals

1. Has there been a relevant transfer?

• Business transfer – Reg 3(1)(a) – transfer of an undertaking, business, or part of a business situated in the Uk immediately before the transfer to another person where there is a transfer of an economic entity which retains its identity

  • to qualify as a business transfer, the identity of employer must change

  • Is there an economic entity? (question of fact)

    • Reg 3(2) –organised grouping of resources with the objective of pursuing economic activity, whether or not that activity is central or ancillary

    • Cheesman test

      • Needs to be an economic entity that is stable and discrete – whose activity is not limited to performing one specific contract

      • Entity must be sufficiently structured and autonomous – will not necessarily have significant assets

      • In some sectors, the entity can be based on manpower (only asset)

      • The entity’s identity comes from factors e.g. Manpower

  • Has the entity transferred?

    • Identifiable set of resources (including employees) and that set of resources retains its identity post-transfer

(1) Has the entity retained its identity?

(2) Are the operations continued or resumed after the transfer?

• Applies to full transfer of undertaking and a part of an undertaking

• Spijkers test – 7 factors (must consider all and not independently)

  • Type of business or undertaking

  • Transfer or otherwise of tangible assets

  • Value of intangible assets at date of transfer (e.g. goodwill)

  • Whether the majority of staff (number or skill) are being taken by the new employer

  • Transfer or otherwise of circle of customers

  • Degree of similarity of activities before and after transfer

  • Duration of any interruption of activities

• Tribunal must ask which, if any of the above are present, if the answer is all or several = transfer of stable economic entity

  • Klarenberg v Ferrotron – as long as some functional link was maintained so that the transferee continued the same or similar economic activity – MUST RETAIN IDENTITY (no need to retain the same structure so long as some functional link maintained)

  • Can’t get round regulations by not taking on staff (ECM v Cox)

• Service provision changes

  • Reg 3(1)(b)– 3 possible situations:

    • Contracting out = activities cease to be carried out by a person on their own behalf and instead are carried out by another on their behalf

    • Second generation contracting = activities cease to be carried out by the contractor and are instead carried out by another contractor, on the client’s behalf (contractor A replaced by contractor B)

    • Contracting back/insourcing = activities cease to be carried out by the contractor and are then carried out by the client on their own behalf

  • Do not apply to changes for one specific event only, or changes for a short term duration

  • Activities pre and post change must be fundamentally or essentially the same

  • Reg 3(3) – preconditions:

    • Immediately before the service provision change:

      • Must be an organised group of employees, in GB, which has a principal purpose of carrying out activities concerned on behalf of the client;

      • The client must intend the activities to be carried out by the transferee, and not short term or single event

      • The activities do not consist wholly or mainly of the supply of goods for the client’s use

    • Will NOT be a service provision change if client is not the same client

    • Rynda v Rhijnsburger – 4 stage process:

(1) Identify the service the transferor was providing for the client

(2) List the activities the staff of the transferor performed in order to provide that service

(3) Identify the employees who ordinarily carried out the activities

(4) Consider whether the transferor organised the employees who were leaving into a ‘grouping’

2. Effect of the transfer?

• Contract does not end by reason of the transfer, instead it will be transferred with the existing T&Cs and continuity of service – same rights against transferee as they had with transferor

• Gross misconduct dismissal, but awaiting appeal, employment would be preserved solely for the appeal – if the appeal was successful the employee would be treated as employed and transferred

• Transferee may still be liable for claims arising out of any pre-transfer dismissal – can’t circumvent by dismissing some staff prior to transfer

• Reg 4(3) – applies to all employees employed by the transferor immediately before the transfer (and to those that would have been employed had they not been unfairly dismissed)

  • Does not apply to employees retained by transferor and instead redeployed/reassigned within the organisation – question of fact as to whether employee is assigned to relevant grouping

    • Botzen test – whether there is a transfer of the part of the undertaking to which the employee was assigned and which formed the...

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