TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations 2006, which came into force in the UK to fulfill European obligations. TUPE operates to preserve employees' statutory and contractual rights before a transfer to a new employer. When there is a relevant transfer like a transfer of undertaking or service provision change, TUPE applies if the economic identity of the undertaking is retained and carried on by the transferee. TUPE protects employees' continuous employment, collective agreements, contractual rights, and minimal occupational pensions. The new employer assumes the old employer's rights, powers, duties and liabilities.

1. UNISON WORKSHOP
TUPE
AN INTRODUCTION

2. WHAT IS TUPE?
• Transfer of Undertakings (Protection of
Employment) Regulations 2006 - came into
force on 6 April 2006.
• TUPE is derived from European Community
law, to fulfil the UK’s obligations under the EC
Council Directive 77/187 (Acquired Rights
Directive)

3. TUPE operates to preserve
an employee’s statutory and
contractual employment rights
that the employee had before
the transfer.

4. TUPE provides that …the
new employer simply steps
into the shoes of the old
employer.
TUPE 2006,
Regulation 4(1)

5. WHAT IS PROTECTED?
• All the old employer’s rights, powers,
duties and liabilities
• Continuous employment
• Collective agreements
• Recognition
• All contractual rights
• Minimal occupational pension

6. When does TUPE apply?
Relevant Transfer =
• ‘Transfer of Undertaking’
or
• ‘Service Provision Change’

7. • Has the undertaking retained
its economic identity; and
• is it carried on by
the transferee?

8. TUPE and Claims
• Transferee has Liability for any
discrimination or other breaches by
Transferor
• Claims against transferor and transferee:
– Unfair dismissal
– Unlawful deduction of wages
– Unlawful dismissal
– Failure to inform and consult.

9. Unfair Dismissal
• Employee must have worked 2 Years
for transferor or transferee before
making claim
• Dismissal for reason connected with
transfer
• ETO reason entailing changes in the
workforce

10. ETO
• Terms and conditions may be changed
before or after transfer if......
• Economic, Technical or Organisational
reason entailing changes in the
workforce.

11. No Statutory Definition of ETO But....
• Economic reason = Profitability or
market performance
• Technical reason = Equipment or
production process
• Organisational reason = Management
or organisational structure
• Above must entail changes in the
workforce.

12. ETO
Economic, Technical and
Organisational reason
entailing changes in the
workforce
Hardy v Meter U

13. • Claims must be brought 3
months less one day of the
transfer for most discrimination
and for unfair dismissal claims.
• Equal pay claims must be
brought within 6 months of a
TUPE transfer.

14. Objection to transfer =
• Termination of
employment
• No dismissal (Regulation
4(7) & (8)) so no right to
redundancy payment.

15. Unlawful deduction
of Wages claims
• Failure to honour terms in
contract;
• Harmonisation of terms
and conditions after the
transfer

16. Alemo-Heron &
Ors v
Parkwood

17. POST TRANSFER
HARMONISATION
• Why?
• Is it connected with
the transfer?
• If not, it is
permissible.

18. DUTY TO INFORM
& CONSULT

19. Under Regulation 13(1), the employer must
inform trade unions of the following matters:
– The fact that the transfer is to take place;
– The approximate date of the proposed transfer;
– The reason for the proposed transfer;
– The legal, economic and social implications of
the transfer for the affected employees; and
– Any measure which the old or new employer
will take as a result of the transfer, or if no such
measures will be taken, this should be stated.

20. Measures
A “Measure” means an action
which the employer or transferee
intends to implement and it does
not include a vague idea of future
arrangements (Regulation 13(2)).

21. FAILURE TO INFORM
AND CONSULT =
MAXIMUM OF 13
WEEKS PAY PER
EMPLOYEE

22. QUESTIONS?