Analysis and commentary by Reed Smith attorneys on developments in employment and labor law
On 10 May the UK government made a series of announcements that affect employment law.
Firstly, a significant change to the Retained EU Law (Revocation and Reform) Bill means that we are no longer on tenterhooks about what EU laws will continue to apply. The sunset clause, which provided that EU law would be automatically…
On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-2023 was introduced to the House of Commons, and if passed could give rise to the most significant shake up of employment rights since Brexit.
In summary, the Bill acts to automatically repeal all retained EU law, and remove the principle of the supremacy of EU law, on 31 December 2023 (with the power to extend the revocation date to 23 June 2026) unless specific legislation is introduced to retain it.
What this means for UK employment law is unclear at the moment, but as employment rights relating to the transfer of undertakings (TUPE), annual leave and working time, discrimination and equal pay, and agency, part time and fixed term workers are derived from the EU, the potential for changes in these areas looms large.
We can only speculate at this stage, but there does not seem to be any current indication or suggestion of a radical overhaul of UK employment laws that have their origin in the EU. The UK has a strong track record of high employment standards, on occasion ‘gold-plating’ the minimum criteria required of it by the EU, and although the promised strengthening of rights through the Employment Bill are yet to materialise, the current political landscape is not conducive to a government looking to significantly reduce rights. In addition, trade unions and worker organisations would certainly be likely to vehemently challenge any proposed changes that are to the detriment of workers.…
Continue Reading What next for EU derived employment rights in the UK?
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…
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…
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 to consider whether, in practice and on the facts, there is a service provision change and, if so, whether the employees in question are assigned to an organised grouping of employees which has as its principal purpose the carrying out of the activities concerned. …
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.…
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 unionised. Thanks to this ECJ ruling, the new employer will not be bound by the terms of any collective agreement which is negotiated after the transfer and to which it is not a party.…
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 always important to go back to the wording of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) and, specifically, always consider whether there is an “organised grouping of employees […] which has as its principal purpose the carrying out of the activities concerned […]” (regulation 3(a) TUPE).…
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 when the client brought in-house work previously carried out by the Claimant’s employer, there was no service provision change.
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Continue Reading Service provision changes: Is an employee who works only for one client an “organised grouping of employees”?
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, there was no “centralised service” in place following the transfer. As a result, there was held to be an essentially different activity in place and TUPE did not apply.
This case follows another recent decision in Nottinghamshire Healthcare NHS Trust v Hamshaw and others which held that where care services transferred from the Trust to new providers there was not a service provision change because the services were not fundamentally or essentially the same, owing to the methods used to provide them.…
Continue Reading TUPE: Service Provision Changes and what activities transfer
