TUPE: Law and Practice
TUPE: Law and Practice
Fourth edition
This guide provides analysis of the new 2014 TUPE Amendment Regulations including:
- the scope to “service provision changes” (i.e. outsourcing/contracting-out and in), as well as clarification of the Regulation 3;
- key changes relating to transfer dismissals and changes to terms and conditions;
- pensions obligations under TUPE;
- clarified ‘joint‘consultation rights;
- the confusing application of TUPE where the transferor is insolvent.
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A cascade of TUPE cases, notably and centrally upon the service provision change, and the subsequent enactment of the Collective Redundancies and the Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 by the UK Government, have made necessary this fourth edition of TUPE: Law & Practice.
The new 2014 Amendment Regulations, in force from 31 January 2014, are intended to clarify the issues raised by recent cases and also to reduce the burdens on employers of small enterprises.
This guide provides analysis of the new 2014 TUPE Amendment Regulations including:
- the scope to “service provision changes” (i.e. outsourcing/contracting-out and in), as well as clarification of the Regulation 3;
- key changes relating to transfer dismissals and changes to terms and conditions;
- pensions obligations under TUPE;
- clarified ‘joint‘consultation rights;
- the confusing application of TUPE where the transferor is insolvent.
Lawyers, politicians and policymakers, HR practitioners, as well as academics, will find this book brings them up to speed on TUPE. This book aims to keep pace with these changes, providing practical advice and cutting edge analysis.
CONTENTS
PREFACE
CONTENTS
TABLES OF AUTHORITIES
GLOSSARY OF TERMS
1. TUPE IN CONTEXT
1.1. TUPE or not TUPE?
1.2. The Original (1977) Directive
1.3. The original TUPE Regulations - 1981
2. EMPLOYMENT RIGHTS UNDER TUPE
2.1. 1998 ARD
2.2. UK’s Pre-Existing Law before TUPE 1981
2.3. The former TUPE Regulations 1981
2.4. ECJ’s Case Law: 1985-2006
2.5. UK judicial guidance, 1987-2006
2.6. Consultation rights conundrum of 1996
2.7. Key TUPE Provisions on Collective rights
2.8. The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999
2.9. Practical Issues post-1999 Consultation Regulations
2.10. Revising the Directive
2.11. Amended Directive – 1998
3. PENSIONS AND TUPE
3.1. The Pensions Exclusion
3.2. The ECJ and Pensions Rights under TUPE
3.3. Whitney v Monster Worldwide Ltd
3.4. Pensions and Public Sector Transfers
3.5. TUPE and the Pensions Act 2004
3.6. TUPE and the Auto-enrolment Regime
4. TUPE AND INSOLVENCY
4.1. The Old Regime
4.2. “Hiving-down”
4.3. The meaning of ETO in insolvency situations
4.4. Insolvency under the 2006 regime & beyond
4.5. Pre-Pack insolvency
4.6. Permitted variations of terms and conditions of employment
4.7. Notification requirements
4.8. Misuse of insolvency proceedings
4.9. Insolvency and TUPE Working Together?
5. SERVICE PROVISION CHANGES AND TUPE
5.1. What is service provision change (aka ‘out-sourcing’)?
5.2. Workforce matters in local authority contracts: Best Value
5.3. Contracting-Out and TUPE
5.4. Ordinary Transfers versus Contracting-Out Transfers
5.5. Practical Issues on TUPE with Contracting-Out
5.6. SPC, TUPE and the Law
5.7. The ‘ETO’ Defences and contracting
5.8. Recent developments on SPC
6. TUPE 2014 and beyond
6.1. TUPE Regulations
6.1.1. Types of Transfer
6.1.2. Effect of Relevant Transfers
6.1.3. Collective Agreements and Trade Union Recognition
6.1.4. Employee Dismissal
6.1.5. Pensions
6.1.6. Employee Liability Information
6.1.7. Election of Employee Representatives
6.1.8. Failure to Inform or Consult
6.1.9. Restriction on Contracting Out
6.2. TUPE and Business Transactions
6.3. Due Diligence
6.4. Negotiation of the Contractual Terms
6.5. Other issues
Further References
Useful Websites
APPENDIX 1: COUNCIL DIRECTIVE 98/50/EC
APPENDIX 2: TUPE REGULATIONS 2006
APPENDIX 3: TUPE AMENDMENT REGULATIONS 2014