|
|
The aim of TUPE is to protect employees when a business changes hands or there is a change of service provider. In those circumstances, an employee's contract of employment would normally terminate.
However, if TUPE applies, the new employer (known as the buyer) takes on all the rights and liabilities associated with the employees who were employed by the old employer (known as the seller) immediately before the transfer took place. The employees' continuity of employment will be preserved. This protection also applies in contracting out scenarios, where the employee may transfer to the new provider of the services.
TUPE HR Resources | Last updated: 30/04/2012 11:03:00
|
1. INFORMATION IN REDUNDANCY SITUATIONS
1.1. IntroductionThere is a statutory duty to inform and consult workforce representatives in:
a collective redundancy situation; or
where there is a TUPE transfer.
1.2. General PrinciplesInformation
TUPE HR Resources | Last updated: 30/04/2012 10:19:00
|
We all know that where TUPE applies, employment contracts automatically transfer from one employer to another, subject to the employee's right to object. However, where TUPE is not relevant, old common law principles apply: the employment of an employee cannot be transferred from one employer to another without the employee's consent. This principle was confirmed in the EAT case of Gabriel v P
Blog Article | Last updated: 24/04/2012 14:37:00
|
In the recent case of Abellio London v CentreWest London Buses, the Employment Appeal Tribunal (EAT) held that a relocation of 6 miles as a result of TUPE transfer was a substantial change in bus drivers' working conditions to their material detriment. Accordingly, the EAT found that the bus drivers had been entitled to resign and, as such, could rely on regulation 4(9) and 4(11) of TUPE to claim
Blog Article | Last updated: 12/03/2012 17:29:00
|
The EAT has recently upheld an employment tribunal's decision that a contract being outsourced from one contractor to another, does not constitute a service provision change. Guidance was given on what an "organised grouping of employees" means for the purposes of regulation 3(3)(a)(i) of TUPE. An organised grouping cannot be evidenced by the fact that a group of employees worked mostly for a p
Blog Article | Last updated: 01/03/2012 15:10:00
|
Effect and importance
This fact sheet looks at the statutory duty to inform and consult workforce representatives in either a collective redundancy situation or on a transfer of undertakings
When is collective consultation required?
Collective redundancy
When an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the resulting dismissals will be collective redundancies. In this situation the employer has an obligation to conduct collective consultation, in addition to his duty to consult with employees individually. For more information on individual redundancy, please refer to our fact sheet on Redundancy.
Employing entities are treated separately for the purposes of collective redundancy consultation so redundancies proposed by different companies in a group are not aggregated i.e. 10 redundancies proposed by one company in a group and 10 by another will not trigger the duty to collectively consult for either.
TUPE HR Resources | Last updated: 08/02/2012 10:04:00
|
This fact sheet should be used where you are tendering for a contract which is currently carried out either by the Client or another contractor ("transferor") and involves a service provision change i.e. first or subsequent generation outsourcing. As part of the TUPE process the transferor is required to provide certain employee information to the new contractor ("transferee") and the transferee will almost certainly want additional information in relation to the employment situation on the contract it is tendering for - see our fact sheets ‘TUPE considerations for Tenderers' and ‘Due Diligence for tenderers - HR issues' for further information.
Ideally, the information provided by the transferor should be sufficient for you to answer the points set out in this fact sheet.
TUPE HR Resources | Last updated: 08/02/2012 10:02:00
|
Does TUPE apply? Is there a ‘relevant transfer'?
TUPE 2006 applies to two types of situation:
• A business transfer
• A service provision change
Business Transfer
• Is there an identifiable economic entity carried on by the transferor (current contractor), and
• Will this economic entity retain its identity in the hands of the transferee (incoming contractor)?
TUPE HR Resources | Last updated: 08/02/2012 10:00:00
|
Obligations on the contractor
When you outsource a function, HR issues are key to the success of the arrangement. The contract that you enter with the contractor should contain provisions to help you stay in control of the HR angle.
The contractor should:
Control of workforce
• Keep detailed records of the work actually performed by individual employees. (This will assist in identifying dedicated workers for TUPE purposes.)
• Adhere to the conditions you set regarding numbers, removal and replacement of key personnel and not remove or substitute key personnel without your consent.
• Depending on the type of service to be provided, adhere to conditions set by you regarding minimum levels of qualifications and experience that workers engaged on the contract will have, and how the contractor will deal with any skills gap in its workforce.
• Ensure that at all times there are sufficient numbers and types of workers engaged on the contract to cover absences and peaks in demand for the services.
• Ensure that its workers comply with your policies relevant to the performance of the services, for example, the safe operation of equipment.
• Only use workers with a criminal record with your prior consent.
• At your reasonable request, instigate appropriate disciplinary action against a worker and advise you of the outcome in writing.
• At your request, remove any of its personnel from the contract.
TUPE HR Resources | Last updated: 08/02/2012 09:57:00
|
Warranties
In a TUPE situation, an employment warranty is a form of assurance given in a contract about some aspect of the employment affairs within the undertaking. If the warranty is incorrect, the person in receipt of the warranty (typically the transferee) will be able to sue for breach of warranty - but only if the person in receipt of the warranty can show that the breach has caused it loss (e.g. the overall value to it of gaining the contract has been reduced). Often there will be financial caps on the amount of losses that can be recovered or minimum losses that must be incurred before monies can be recovered.
Warranties need to be given not only on exchange of contracts, but also on completion of the deal in case the position changes in the meantime.
Examples of warranties a transferee should seek include:
TUPE HR Resources | Last updated: 08/02/2012 09:56:00
|
|
|