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.