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IER Annual Employment Law Conference TUPE - Gold Plating or Gold Stripping

IER Annual Employment Law Conference TUPE - Gold Plating or Gold Stripping. Jo Seery October 2012. Introduction. TUPE Purpose - protect rights of workers where change of employer Government proposals for Reform: Call for evidence on effectiveness of TUPE 2006

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IER Annual Employment Law Conference TUPE - Gold Plating or Gold Stripping

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  1. IERAnnual Employment Law ConferenceTUPE - Gold Plating or Gold Stripping Jo Seery October 2012

  2. Introduction TUPE • Purpose - protect rights of workers where change of employer • Government proposals for Reform: • Call for evidence on effectiveness of TUPE 2006 • Government response 14th September 2012 • What’s the beef with service provision changes?

  3. Background to Service Provision Change • Acquired Rights Directive (ARD) – standard transfers • Landsorganisationen i Danmark Ny MØlle Kro 1989 ICR330 • Süzen v Zehnacker Gebaudereinigung Gm H Krankenhausservice [1997] ICR662 • Spijkers Gebroeders Benedik Abattoir CV and Anor [1986] 2 CML R296 – the multi-factorial test

  4. SPC – The UK’s approach - P&O Trans European Limited v Initial Transport Services Ltd and Ors [2003] IRLR 128 - Scottish Coal Company Ltd v McCormick and Ors [2005] ALL ERO14 • Government Consultation 2005 • Ongoing problems - CLECE SA v Maria Socorro [2011] IRLR 251 - Ivana Scattalon v Ministero Adele Istruzione dell Universita della Ricerca C-108/2010

  5. So what is a Service Provision Change? • Organised grouping of employees situated in GB which has, as its principal purpose carrying out activities on behalf of the client. • Outsource to a new contractor • Subject to a change of contractor • Brought back in-house

  6. Service Provision Change - 2 • Have the activities continued? - Nottinghamshire Health Care NHS Trust v Hamshaw and Others UKEAT/0037/11 - Johnson Control Limited v Campbell and Anor UKEAT/0041/12

  7. Service Provision Change – 2 cont. • What happens when the activities are split amongst different contracts? - Kimberley Group Housing Ltd v Hambley [2008] IRLR/682 - Enterprise Management Services Ltd v Connect-Up Ltd UKEAT/0462/10 • Organised grouping of employees - Eddie Stobart Ltd v Moreman and Ors UKEAT/0223/11 - Argyll Coastal Services Ltd v Sterling and ors UKEATS/0012/11

  8. Service Provision Change 3 • When does a Service Provision Change amount to the provision of goods? - Pannu and Ors v Goe W King Ltd (In Liquidation) and Ors UKEAT/0023/11

  9. Changes to Contract • All liabilities arise under or in connection with, the contract of employment transfer to the transferee • Daddy’s Dance Hall principles in TUPE 2006 • Collective agreements - Parkwood Leisure Ltd v Alemo-Herron and ors [2011] UKSC26 • Pensions - Beckmann v Dynamco Whicheloe MacFarlane Ltd [2003] ICR50 - Proctor and Gamble Co v Svenska Cellulosa Aktiebolaget and Anor [2012] IRLR 733 • Pensions Act 2004 • Transfer of Employment (Pension Protection) Regs 2005

  10. Dismissal - 1 • An employee is automatically unfairly dismissed where sole or principal reason for the dismissal is the transfer or a reason connected with the transfer that is not an ETO reason entailing changes in the workforce (Reg 7) • ETO reason must be a change in numbers of the workforce or a change in the job function - Berriman v Delabole Slate Ltd

  11. Dismissal – 2 What constitutes “workforce”? • Single person - Spaceright Europe Ltd v Baillavoine and Anor UKEAT 0339/10 • Franchisees - Meter U Ltd v Ackroyd and Ors [2012] ICR 834 What about the ETO reason? - Manchester College v Hazel [2012] UKEAT 13612

  12. Conclusion Way ahead – resisting change Further information: LELR www.thompsons.law.co.uk

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