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TUPE

TUPE. “Where are we now?” Richard Arthur Kate Ewing Thompsons Solicitors. Government Policy. Extended coverage of TUPE; Cabinet Office Statement of Practice; and Case-specific legislation using powers in s.38 Employment Relations Act 1999. TUPE 2006.

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TUPE

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  1. TUPE “Where are we now?” Richard Arthur Kate Ewing Thompsons Solicitors

  2. Government Policy • Extended coverage of TUPE; • Cabinet Office Statement of Practice; and • Case-specific legislation using powers in s.38 Employment Relations Act 1999

  3. TUPE 2006 • Wider coverage-”service provision changes”; • Changes to terms and conditions and dismissals in connection with a transfer; • Insolvency; • “Employee liability information”; and • Information and consultation.

  4. Service Provision Changes • “Activities” cease to be carried out by a client/contractor; • “Organised grouping of employees” whose “principal purpose” is the carrying out of the activities; • Not in connection with a “single specific event or task of short duration” and • Activities not wholly or mainly the supply of goods or services.

  5. COSOP (November 2007) • Cabinet Office Statement of Practice; • Covers public private partnerships, second and subsequent generation contracting, reorganisations of the public sector and within the Civil Service; • Principles of TUPE should be followed; • “Attempts to orchestrate a non-TUPE situation will not be tolerated”; • Limited exceptions; and • A “Fair Deal for Staff Pensions”.

  6. Local Authority Contracts • Code of Practice on Workforce Matters in Local Authority Service Contracts; • Application of TUPE; • Protection against “two-tier” workforce; • S.19(4) LGA 1988-best value authority shall “have regard to” guidance issued by Secretary of State; and • Local Authority must have a cogent reason for not following the Code.

  7. Case Specific Legislation • Local Government Structural and Boundary Change in England (Staffing) Regulations 2008; • Local Transport Bill; • “TUPE shall apply to the transfer of functions………”; • As opposed to “staff will transfer as if TUPE applied”; and • Compliance with guidance issued by Secretary of State.

  8. Transfers overseas • Holis Metal Industries Limited v GMB and another [2008] IRLR 187; • Transfer of a business in Tamworth to Israel; • TUPE capable of applying to transfers to other countries, inside and outside the EU; • Note information and consultation opportunities.

  9. Contractual changes • If the sole or principal reason for the variation is (1) the transfer itself or (2) a reason connected with the transfer that is not an ETO reason, the variation is void; • ETO reason “…..entailing changes in the workforce”; • Change in headcount or job description; • Variations permitted where the reason is connected with the transfer, and is an ETO reason; • Does that comply with the ARD?

  10. Information and Consultation • “Long enough before the transfer to enable consultation to take place…”; • Fact of transfer, date and reasons; • Legal, economic and social implications for affected employees; • “Measures” old employer envisages it will take; and • “Measures” old employer envisages new employer will take

  11. Information and Consultation • “Affected employees”-any employee who may be affected by the transfer, regardless of whether they actually transfer; • Election of employee representatives; • “Measures”: any changes to existing working practices or arrangements.

  12. Information and Consultation • Obligation to consult only where employer envisages taking “measures”; • Employer must consider union’s representations and reply to them; • With a view to reaching agreement; • Up to 13 weeks’ pay per affected employee;and • Award is punitive.

  13. Equal Pay • Time limits: 6 months from the date of leaving employment with the transferee: • Gutridge v Sodexho, Joss and others v Cumbria County Council; • Can make a comparison post transfer with comparator still employed by old employer: Armstrong v Newcastle Upon Tyne Hospitals Trust.

  14. The Future • European Commission to consult on the implications of transnational transfers; • The UK Government has clearly spelled out that it will seek amendments to the ARD to permit harmonisation of terms and conditions.

  15. Share Transfers • Private Equity (Transfer of Undertakings Protection of Employment) Bill; • No change in the identity of the employer; • Applies to transfers of controlling shareholdings; • Information and consultation; and • Injunctions.

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