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TUPE: Law and Practice

an overview of the TUPE regulations 2006

by Wyn Derbyshire, Stephen Hardy and Stephen Maffey

Price: £75    Publication date: April 2006    ISBN: 1904905 18 8

For UK employers and their advisers, the new TUPE Regulations, (introduced on 6 April 2006), have been eagerly awaited. They have taken the government five years to finalise, following extensive consultation and usher in a new regime to govern the rights of employees on a takeover or merger of the business which employs them.

The new TUPE regulations replace regulations introduced 25 years ago and introduce a number of reforms:

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extending the scope to “service provision changes ” (i.e. contracting-out ); 

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clarification of the overall definition of ‘a relevant transfer’;

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 determining key issues relating to transfer dismissals and changes to terms and conditions; 

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clearer pensions  obligations;

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strengthened consultation rights; and

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the widening of the application of TUPE where the transferor is insolvent.

This book provides a guide to the changes, first setting them in the context of the existing TUPE protections. It explores the practical issues to which these have given rise and some of the controversies they have created, particularly in relation to the key areas of insolvency and pensions. The book examines the impact of European law on this area as well as looking at trade union action in the UK in this context. It is an ideal guide for employers and their advisers, and an invaluable reference work for economists, policy-makers, and academics and students.

Contents

Chapter 1: TUPE in Context         

Chapter 2: Employment Rights in TUPE  

Chapter 3: Pensions and TUPE      

Chapter 4: TUPE and Insolvency  

Chapter 5: Outsourcing and TUPE           

Chapter 6: New TUPE in Practice 2006

From the Introduction

“[T]he law is in a state of critical uncertainty; it is almost impossible to give accurate advice to [those] involved in possible transfers with any degree of certainty” (Complete Clean Ltd v. Savage (EAT 2002)).

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 1981 have caused turmoil since their inception; as a result, their importance in employment law and HR practices has become paramount, since for employers 'business transfers' can either mean commercial survival or a symbol of success whereas employees' concerns focus on job security and terms and conditions. In this guide, we will encounter the inherent conflict of interest between business interests and contractual rights. Notably, given the widespread reorganisation of businesses and the vast application of contracting-out in the UK's public sector since the 1980s, the controversy between employers’ business interests and employees’ contractual rights has intensified. It is in respect of this conflict that this guide aims to analyse and explain the law relating to business transfers in the UK in order to understand the relevant legal principles and identify good HR practice in this area.

In the chapters comprising this book, the employment rights enshrined in the TUPE legal framework will be examined in Chapter 2, whilst Chapter 3 presents guidance on the key issue of pensions. Chapter 4 discusses the thorny issue of insolvency and Chapter 5 explains the significance of contracting-out under TUPE’s auspices. Against all of this informative legal analysis, the closing chapter provides advice on the newly revised TUPE Regulations 2006. This opening chapter now seeks to provide the necessary background to embark upon this analysis of the law surrounding TUPE.

About the authors:

Dr Stephen Hardy is a barrister and former Professor of Law at the University of Manchester.

Dr Wyn Derbyshire and Stephen Maffey are partners at SJ Berwin LLP

Publication date: 6 April 2006    Price £75.00        ISBN: 1 904905 18 8

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