EMPLOYMENT LAW & PRACTICE
TUPE
Outcomes
By the end of this unit you should be able to:
✓ Identify whether TUPE applies to a business transfer.
✓ Explain the implications of Regulation 4 of TUPE to clients with claims arising before a TUPE
transfer.
✓ Explain the implications of Regulations 4 and 7 of TUPE for dismissal prior to or after a TUPE
transfer.
✓ Advise an employer on the implications of varying employees’ contracts following a business
transfer to which TUPE applies
Unit Workshop Tasks
In this unit workshop you will
✓ Review your answer to the Preparatory Task.
✓ Identify the appropriate respondent and advise on claims that could be brought by
employees following a transfer of an undertaking.
Contents
TUPE 2
BUSINESS Transfers (LO1) 3
Service Provision Changes 6
Implications of Regulation 4 to clients – 8
claims arising BEFORE transfer (LO2)
Scenario: The Employee is Dismissed BEFORE 11
the Transfer (LO3)
Scenario: The Employee is Dismissed AFTER 15
the Transfer (LO3)
Provision of Information by the Transferor to 17
the Transferee
Provision of Information for Employees 18
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
TUPE
Ch 7, p321
KEY TERMS
Transferor Old Employer
Transferee New Employer
ETO Economic, Technical, or Organisational reasons
SOSR Some other substantial reason (for Unfair Dismissal claims)
Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE
Regulations”)
❖ Operates where employees’ employment obligations are transferred from one employer to
another.
❖ Where a transfer is caught by TUPE, it will ensure that employees employed by the previous
employer (the “transferor”) automatically become employees of the new employer (the
“transferee”).
Is there a Relevant Transfer? 7.2.2.
Definition of a ❖ Regulation 3 - Two types of relevant transfer:
“Relevant o “Business transfers” (Reg 3(1)(a)).
Transfer” o “Service provision changes” (Reg 3(1)(b)).
Two definitions are NOT mutually exclusive – as long as the definition is
satisfied, it does not matter if the other one is not.
NB:// Look out for “assume there has been a relevant transfer” – do not
need to then discuss whether there has been a relevant transfer.
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
BUSINESS Transfers (LO1)
7.2.2.1 p324
NB:// should always be applied where TUPE question does not confirm there is a relevant
transfer if the application is to understand whether TUPE is relevant.
Business ❖ A business transfer occurs “where there is ‘a transfer of an undertaking,
Transfers business or part of an undertaking or business situated immediately before
(Reg 3(1)(a)) the transfer in the United Kingdom to another person where there is a:
o A transfer of an economic entity
o Which retains its identity” (Reg 3(1)(a)).
Is there a ❖ The identity of the employer must change.
Transfer? o The Regulations do not apply to transfers by share takeover
because the same company continues to be the employer, Brookes
and Others v Borough Care Services and CLS Care Services Ltd
[1998] IRLR 636 EAT
❖ The key ECJ case outlining the general tests to be applied in determining
whether there is a business transfer is Spijkers v Gebroeders Benedik
Abattoir CV [1986] ECR 1119, ECJ.
o In Spijkers, the transferor owned and ran a slaughterhouse. The
business came to an end, whereupon the premises, certain goods
and all employees bar Mr Spijkers were transferred to the
transferee.
o It was held that the fact that there was a break in time between the
old business ceasing and the new one starting, and the lack of a
transfer of goodwill, did not prevent the application of the Acquired
Rights Directive.
Is there an ❖ An Economic Entity is defined by Reg 3(2):
Economic o ‘An organised grouping of resources which has the objective of
Entity? pursuing an economic activity, whether or not that activity is
central or ancillary’.
▪ The reference to ‘economic’ appears to suggest that the
‘undertaking’ being transferred does need to have some sort
of cost centre.
▪ BIS Guidance suggests that ‘resources’ includes not only
tangible and intangible assets but also employees.
❖ Cheesman v R Brewer Contracts [2001] IRLR 144 (approved by the CA in
Balfour Beatty Power Networks Ltd v Wilcox [2007] IRLR 63), the EAT said
that:
(1) There needs to be an economic entity which is:
▪ Stable and discrete (separate) and
not for resale or distribution
TUPE
Outcomes
By the end of this unit you should be able to:
✓ Identify whether TUPE applies to a business transfer.
✓ Explain the implications of Regulation 4 of TUPE to clients with claims arising before a TUPE
transfer.
✓ Explain the implications of Regulations 4 and 7 of TUPE for dismissal prior to or after a TUPE
transfer.
✓ Advise an employer on the implications of varying employees’ contracts following a business
transfer to which TUPE applies
Unit Workshop Tasks
In this unit workshop you will
✓ Review your answer to the Preparatory Task.
✓ Identify the appropriate respondent and advise on claims that could be brought by
employees following a transfer of an undertaking.
Contents
TUPE 2
BUSINESS Transfers (LO1) 3
Service Provision Changes 6
Implications of Regulation 4 to clients – 8
claims arising BEFORE transfer (LO2)
Scenario: The Employee is Dismissed BEFORE 11
the Transfer (LO3)
Scenario: The Employee is Dismissed AFTER 15
the Transfer (LO3)
Provision of Information by the Transferor to 17
the Transferee
Provision of Information for Employees 18
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
TUPE
Ch 7, p321
KEY TERMS
Transferor Old Employer
Transferee New Employer
ETO Economic, Technical, or Organisational reasons
SOSR Some other substantial reason (for Unfair Dismissal claims)
Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE
Regulations”)
❖ Operates where employees’ employment obligations are transferred from one employer to
another.
❖ Where a transfer is caught by TUPE, it will ensure that employees employed by the previous
employer (the “transferor”) automatically become employees of the new employer (the
“transferee”).
Is there a Relevant Transfer? 7.2.2.
Definition of a ❖ Regulation 3 - Two types of relevant transfer:
“Relevant o “Business transfers” (Reg 3(1)(a)).
Transfer” o “Service provision changes” (Reg 3(1)(b)).
Two definitions are NOT mutually exclusive – as long as the definition is
satisfied, it does not matter if the other one is not.
NB:// Look out for “assume there has been a relevant transfer” – do not
need to then discuss whether there has been a relevant transfer.
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
BUSINESS Transfers (LO1)
7.2.2.1 p324
NB:// should always be applied where TUPE question does not confirm there is a relevant
transfer if the application is to understand whether TUPE is relevant.
Business ❖ A business transfer occurs “where there is ‘a transfer of an undertaking,
Transfers business or part of an undertaking or business situated immediately before
(Reg 3(1)(a)) the transfer in the United Kingdom to another person where there is a:
o A transfer of an economic entity
o Which retains its identity” (Reg 3(1)(a)).
Is there a ❖ The identity of the employer must change.
Transfer? o The Regulations do not apply to transfers by share takeover
because the same company continues to be the employer, Brookes
and Others v Borough Care Services and CLS Care Services Ltd
[1998] IRLR 636 EAT
❖ The key ECJ case outlining the general tests to be applied in determining
whether there is a business transfer is Spijkers v Gebroeders Benedik
Abattoir CV [1986] ECR 1119, ECJ.
o In Spijkers, the transferor owned and ran a slaughterhouse. The
business came to an end, whereupon the premises, certain goods
and all employees bar Mr Spijkers were transferred to the
transferee.
o It was held that the fact that there was a break in time between the
old business ceasing and the new one starting, and the lack of a
transfer of goodwill, did not prevent the application of the Acquired
Rights Directive.
Is there an ❖ An Economic Entity is defined by Reg 3(2):
Economic o ‘An organised grouping of resources which has the objective of
Entity? pursuing an economic activity, whether or not that activity is
central or ancillary’.
▪ The reference to ‘economic’ appears to suggest that the
‘undertaking’ being transferred does need to have some sort
of cost centre.
▪ BIS Guidance suggests that ‘resources’ includes not only
tangible and intangible assets but also employees.
❖ Cheesman v R Brewer Contracts [2001] IRLR 144 (approved by the CA in
Balfour Beatty Power Networks Ltd v Wilcox [2007] IRLR 63), the EAT said
that:
(1) There needs to be an economic entity which is:
▪ Stable and discrete (separate) and
not for resale or distribution
