TUPE
Law and Practice

Since the revised TUPE Regulations were introduced in April 2006 UK employers and their advisers have been grappling with their consequences for terms and conditions of employment, pensions provision and insolvencies. 

Since the revised TUPE Regulations were introduced in April 2006 UK employers and their advisers have been grappling with their consequences for terms and conditions of employment, pensions provision and insolvencies. The TUPE regulations introduced a number of key reforms, including: • extending the scope of the TUPE regime to “service provision changes” (i.e. contracting-out); • clarification of the definition of ‘a relevant transfer’;• determining key issues relating to transfer dismissals and changes to terms and conditions; • clearer pensions obligations;• strengthened consultation rights; and• the widening of the application of TUPE where the transferor employer is insolvent. TUPE: Law & Practice provides a guide to the TUPE Regulations 2006, 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 since they came into force. 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, HR managers, policy-makers, and academics and students.

CONTENTS

PREFACE.. v

CONTENTS. vii

TABLE OF LEGISLATION... xi

TABLE OF CASES. xv

GLOSSARY OF TERMS. xix

Chapter 1: TUPE IN CONTEXT.. 1

TUPE or not TUPE?. 1

The Original - 1977 Directive. 3

TUPE Regulations 1981. 4

Chapter 2: EMPLOYMENT RIGHTS IN TUPE - THE NEW REGIME.. 7

1998 ARD.. 7

UK's Pre-Existing Law before TUPE.. 8

TUPE Regulations 1981. 9

ECJ's Case Law, 1985-2006. 14

UK judicial guidance, 1987-2006. 19

Consultation rights. 24

Key TUPE Provisions on Collective rights. 25

The Collective Redundancies and Transfer of Undertakings (Protection of Employment)(Amendment) Regulations 1999  27

Practical Issues post-1999 Consultation Regulations. 30

Elected Representatives. 30

Timescales. 30

Information obligations. 31

Consultation rights. 31

Remedies. 31

Revising the Directive. 32

Amended Directive 1998. 34

Chapter 3:  PENSIONS AND TUPE.. 39

The Pensions Exclusion.. 39

The ECJ and Pensions Rights under TUPE.. 43

Pensions and Public Sector Transfers. 50

TUPE and the Pensions Act 2004. 51

Chapter 4: TUPE AND INSOLVENCY.. 57

The Old Regime. 57

Hiving-down.. 62

The meaning of ETO in insolvency situations. 62

Insolvency under the 2006 regime. 64

Pre-Pack insolvency. 67

Permitted variations of terms and conditions of employment 67

Notification requirements. 70

Misuse of insolvency proceedings. 70

Insolvency and TUPE Working Together?. 70

Chapter 5: SERVICE PROVISION CHANGES AND TUPE.. 73

What is service provision change (aka ‘out-sourcing')?. 73

Workforce matters in local authority contracts: Best Value. 74

Contracting-Out and TUPE.. 75

Ordinary Transfers versus Contracting-Out Transfers. 77

Practical Issues on TUPE with Contracting-Out 78

Contracting-Out, TUPE and the Law... 80

The ‘ETO’ Defences and contracting. 84

Chapter 6: TUPE 2006. 95

TUPE Regulations 2006. 95

Types of Transfer. 95

Effect of Relevant Transfers. 98

Collective Agreements and Trade Union Recognition.. 100

Employee Dismissal 100

Insolvency. 101

Pensions. 101

Employee Liability Information.. 101

Duty to Inform and Consult 103

Election of Employee Representatives. 105

Failure to Inform or Consult 106

Employers’ Liability Compulsory Insurance. 109

Restriction on Contracting Out 109

TUPE and Business Transactions. 110

Due Diligence. 110

Negotiation of the Contractual Terms. 113

Other issues. 114

Further References. 115

Useful Websites. 117

APPENDICES. 119

APPENDIX 1: Council Directive 98/50/EC.. 119

APPENDIX 2: New TUPE Regulations 2006. 131

APPENDIX 3: Pensions Act 2004, sections 257 and 258. 155

APPENDIX 4: Pensions Protection Regulations 2005. 159

INDEX.. 163