Archives: TUPE

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UK update – TUPE service provision changes become more complex with the potential involvement of multiple clients and contracts

In Ottimo Property Services Ltd -v- Duncan and another, the Employment Appeal Tribunal has decided that, where several different clients change service provider at or around the same time, each individual service provision change can be considered together to decide how TUPE applies. The facts Mr Duncan worked as a site maintenance engineer at a … Continue Reading

The end of the “percentage argument” in TUPE negotiations?

Time after time, businesses are faced with (and use themselves) the classic argument in TUPE negotiations: “Of course the employee must transfer under TUPE – he spends more than 50% of his time on the transferring service”. It is a very convenient and much rolled-out line of reasoning, which can work in both directions (“Of … Continue Reading

TUPE service provision change – look at what is going on ‘on the ground’, as well as the contract

In the recent case of Lorne Stewart plc v Hyde and others, the EAT made clear that it is important not to get side-tracked by the details of formal written contracts which are in place between the parties before and after a potential TUPE transfer, if such details do not reflect reality. Rather, it is essential … Continue Reading

It’s not quite “all change” for TUPE – service provision change provisions will not be repealed after all

Since 2011, the Government has been considering proposals to amend the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Following an initial call for evidence and subsequent consultation, the Government yesterday confirmed the amendments it intends to make to TUPE.… Continue Reading

Collective agreements negotiated after a TUPE transfer will not bind transferee employers

The European Court of Justice (the “ECJ”) has handed down its judgment in a key, long-running TUPE case – Alemo-Herron v Parkwood Leisure Ltd. The decision is good news for employers who regularly inherit employees via ‘TUPE transfers’, especially where those employees were originally employed in the public sector or in sectors that are heavily … Continue Reading

When is an organised grouping of employees not an organised grouping of employees? (UK TUPE update)

Imagine a scenario where one employee spends 100% of his time working for one client. That client takes its services back in-house. Does the employee transfer to the client under TUPE? The instinctive answer might be yes – but that will not always be right. A recent decision of the Scottish Court of Session demonstrates that it is … Continue Reading

Service provision changes: Is an employee who works only for one client an “organised grouping of employees”?

In Seawell Ltd v Ceva Freight (UK) Ltd and another UKEATS/0034/11, the Employment Appeal Tribunal (“EAT”) held that an employee who spent 100% of his time working for a single client was not an “organised grouping of employees” for the purposes of regulation 3(3)(a)(i) of the Transfer of Undertakings (Protection of Employees) Regulations 2006 (“TUPE”). Therefore … Continue Reading

TUPE: Service Provision Changes and what activities transfer

The Employment Appeal Tribunal (EAT) has held in Johnson Controls v Campbell and Anor that there was no service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) where a centralised taxi booking service was brought back in-house by the client. Although the client was still undertaking the activity of booking taxis, … Continue Reading

Service provision changes: Relocation because of TUPE transfer was a substantial change to employees’ material detriment

In Abellio London Ltd (Formerly Travel London Ltd) v Musse and others UKEAT 0283/11 and 0631/11, the Employment Appeal Tribunal (“EAT”) ruled that a relocation of six miles within central London which resulted in the employees having to travel an extra one to two hours to work following a service provision change amounted to a … Continue Reading

Service provision changes: UK EAT gives guidance on the meaning of an “organised grouping of employees”

In the case of Eddie Stobart v Moreman & Others the Employment Appeal Tribunal (EAT) has provided welcome guidance on the meaning of “organised grouping of employees” for the purposes of a “service provision change” under regulation 3(3)(a)(i) of the Transfer of Undertakings (Protection of Employees) Regulations 2006 (“TUPE”). A group of employees who happened to … Continue Reading

UK: TUPE and post-transfer harmonisation of terms to improve productivity not connected to transfer

This post was also written by Danny Bloom.  In Enterprise Managed Services Ltd v Dance and Others, a case concerning a TUPE transfer, the Employment Appeal Tribunal (EAT) held that a decision to ‘harmonise’ the incoming employees’ terms with existing employees could have been legitimately made to improve productivity, so that subsequent dismissals based upon the … Continue Reading

Extensive new duty to provide agency worker information under TUPE and collective redundancy rules

Employers could face significant unanticipated penalties under TUPE and collective redundancy legislation as a result of the Agency Workers Regulations 2010 (AWR) which came into force on 1 October 2011. The AWR adds to the list of mandatory information to be provided to employee representatives under TUPE (the Transfer of Undertakings (Protection of Employment) Regulations … Continue Reading

Will your outsource lead to automatically unfair dismissals under UK law?

It is common in an outsourcing situation for the incoming service provider to undertake the service at a different location to the client or the existing service provider. In this situation, case law now exposes the incoming service provider to a risk of automatically unfair dismissals. The change in location will amount to a redundancy situation … Continue Reading

Interpreting TUPE – an update on the latest cases

The past 18 months has seen a significant number of TUPE related cases. The following is a summary of some of the key decisions. The meaning of the term `activities’ (Service Provision Change) A TUPE transfer will occur when there is a ‘service provision change’. In a first-generation outsourcing, where a client outsources an activity to a … Continue Reading

Effect of TUPE on Collective Agreements

In the case of Parkwood Leisure Ltd v Alemo-Herron and others, the Court of Appeal has examined the effect of regulations 5 and 6 of Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE 1981) in relation to collective agreements. The Court has held that in circumstances where a contractual right to a pay increase is … Continue Reading

TUPE and Constructive Dismissal

In an important decision concerning TUPE transfers, the Employment Appeal Tribunal (EAT) has given guidance in the case of Tapere v South London & Maudsley NHS Trust on, first, the interpretation of mobility clauses in the context of a TUPE transfer and, secondly, on Reg 4(9) TUPE, which allows a transferred employee to treat themselves … Continue Reading

TUPE and Insolvency Proceedings

  In Oakland v Wellswood (Yorkshire) Ltd, the Employment Appeals Tribunal (EAT) decided that an employee of a business in administration was unable to have the protection afforded to employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) when the business in which he was employed was transferred and continued as a … Continue Reading

Liability for equal pay claims on TUPE transfer

  The case of Sodexo Ltd v (1) Gutridge and others (2) North Tees and Hartlepool NHS Foundation Trust considers a transferee’s liability for equal pay claims made by transferred employees following a TUPE transfer. In this case, the Employment Appeal Tribunal (EAT) holds that following a TUPE transfer, claims for equal pay relating to discrimination … Continue Reading

EAT gives guidance on how TUPE applies to service provision changes

In Kimberley Group Housing Ltd v Hambley and ors and Angel Services (UK) Ltd v Hambley and ors, the Employment Appeal Tribunal (EAT) has overturned an Employment Tribunal’s finding that where a service provision contract is performed by one company and is taken over by two companies, the liability for transferred employees should be apportioned … Continue Reading