TUPE - Transfer of Undertakings Solicitors Compensation Claims

 

The TUPE regulations are frequently misinterpreted or ignored by management during company takeovers resulting in many disgruntled employees who feel as though they have suffered whilst the company has thrived. If you believe that the handling of TUPE has been negligent or unlawful, a Transfer of Undertakings solicitor may be able to assist you in claiming compensation or reinstatement. For free advice on The Transfer of Undertakings (protection of employment) (TUPE) 1981 Regulations without obligation from a TUPE solicitor just call the helpline or complete the contact form or email our offices.

Transfer of Undertakings (protection of employment) 1981 Regulations (TUPE)

The Transfer of Undertakings (protection of employment) 1981 Regulations (TUPE) are brief and contain very few definitions that help a TUPE solicitor to interpret them. As a consequence, this has resulted in UK solicitors and Employment Tribunals and civil courts having to spend a considerable amount of time in determining whether the regulations apply to a certain set of facts or circumstances.

The main purpose of the TUPE Regulations is to protect employees' rights when there is a transfer of the business where they are currently employed. If the Regulations do apply, then an employee's right is preserved, as against the person/organisation to whom the business is transferred. This means that the employee's continuity of employment is maintained, as indeed are all current contractual terms and conditions.

If an employee is dismissed in circumstances where The Transfer of Undertakings (protection of employment) (TUPE) 1981 Regulations apply, any claim that a TUPE solicitor makes will be against the organisation to whom the business has been transferred ("the transferee"). If, however, the regulations do not apply, then any claim the employee has will be against their employer, i.e. the transferor of the business.

The key issues that have to be considered by solicitors in determining whether TUPE applies is whether there has been a "relevant transfer" of an "undertaking" and that the transfer taking place is of a identifiable and stable economic entity.

In order for a TUPE solicitor to decide whether there has been a relevant transfer, it is necessary to determine whether an identifiable economic entity has been transferred. This means considering what the business was like both before and after the transfer. The type of matters that need to be looked at in assessing this are as follows:

• Whether there has been a transfer of assets.
• Whether and how many staff are being transferred over.
• Whether the activities before and after the Transfer are similar.
• Transfer of customers.
• The type of undertaking involved.

The Regulations can apply to contracting out of services, the transfer of a service between two contractors, a service reverting back in-house, the setting up of franchises, mergers and acquisitions, granting of leases, etc.

It is important to realise that there can be an undertaking and a transfer of it, even though neither all the employees nor significant assets actually transfer over.

It is automatically unfair to dismiss an employee for a reason related to the transfer unless it is possible for the transferor to show that it was for an economic, technical or organisational (ETO) reason requiring changes in the workforce. However, even if it is for such a reason, the usual rules governing unfair dismissal still apply, and the reason for dismissal in such circumstances is treated as dismissal for some other substantial reason.

The Regulations also impose a duty on the transferor well before the transfer takes place to inform and consult with employee's trade union, if that union is recognised, or if not, with the employees themselves and/or the employees' representatives. The information that is required to be provided by the transferor is laid down in Regulation 10(2). If there is a failure on the part of the employer to comply with this duty, then an Employment Tribunal can award compensation of up to 13 weeks gross pay for each affected employee.

Whilst all employees' rights and contractual terms transfer, at present occupational pension schemes are currently excluded from the Regulations. The exact legal position concerning the transfer of pensions is complicated, though it is expected that the Government will very shortly change the Regulations somewhat to enable limited pension rights to transfer.

It is also worth transferees being aware that they may be liable for breaches of discrimination law, both prior to and after the transfer (see The Transfer of Undertakings (protection of employment) 1981 Regulation 5(2)(b)), "Anything done before the transfer and completed by…….the transferor in respect of that contract or a person employed in that undertaking…..shall be deemed to be done by the transferee".

If the transferee refuses to accept employees, the transferor or treats them less favourably on the grounds of race, sex, disability, sexual orientation or religion, then that treatment is unlawful. There is in those circumstances no minimum service requirement to enable an employee to bring a claim.

TUPE Solicitors

Specialist employment law solicitors operate exclusively in all areas of dispute between employees and employers and they do nothing else which enables them to achieve your goals in the most efficient and practical way possible. They are able to pursue or negotiate a TUPE claim on your behalf and can provide representation anywhere in the United Kingdom. If you would like an initial free consultation for advice to find out whether you have a good case, how to go about claiming and how much your compensation might be worth you can call the helpline or complete the contact form or email our offices. If after talking to a specialist lawyer you decide not to take matters further you are under no obligation to do so and you will not be charged for our initial advice session.