Law Society of Scotland Annual Conference TUPE Update

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Law Society of Scotland Annual ConferenceTUPE
Update

• Jane Fraser
• 2 March 2007

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Outline

• Relevant transfers
• Insolvent businesses
• Who transfers?
• Changing Ts Cs
• Dismissal
• Information Consultation
• Employee liability information

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Relevant Transfers

• a transfer of an undertaking, business or part
  of an undertaking or business situated
  immediately before the transfer in the United
  Kingdom to another person where there is a
  transfer of an economic entity which retains its
  identity Reg. 3(1)(a)
• Economic entity organised grouping of
  resources which has the objective of pursuing an
  economic activity, whether or not that activity
  is central or ancillary Reg. 3(2)

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Relevant Transfers

• Service Provision Changes - introduced in 2006
• Applies to
• Service awarded to contractor which was
  previously undertaken by client
• Service changed from one contractor to another
  and
• Service brought back in-house by the former
  client.

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Relevant Transfers

• Service provision change is transfer if
• Immediately before the change there is an
  organised grouping of employees
• Exceptions
• Services which are one off basis or of
  short-term duration
• Where arrangement is wholly or mainly for the
  supply of goods for the clients use.

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Insolvent Businesses

• Some of transferors pre-existing debts to
  employees do not pass to the transferee
• Greater scope to vary terms and conditions after
  the transfer
• Permitted variations must be agreed with employee
  reps
• Permitted variations must be made with the
  intention of safeguarding employment
  opportunities by ensuring survival of business

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Who Transfers?

• All employees who were assigned to the organised
  grouping of resources or employees
• Any employees who would have been so employed if
  they had not been dismissed by reason of the
  transfer

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Changing Ts Cs

• New limited ability to agree variation to Ts
  Cs
• But cannot validly vary where sole or principal
  reason is
• The transfer itself or
• A reason connected with the transfer which is not
  an economic, technical or organisational reason
  entailing changes in the workforce
• Harmonisation is not an ETO

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Dismissal

• Automatically unfair to dismiss employees for
  reasons connected with a transfer
• ETO Exception
• Dismissal by substantial change to working
  conditions will not be automatically unfair

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Information Consultation

• Applies to Transferor and Transferee
• Affected Employees
• Appropriate Representatives
• Inform about transfer
• Consult about measures
• Timescale
• Up to 13 weeks pay/employee for failure

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Information and Consultation

• 2006 regs introduced joint and several liability
  for failure to inform/consult
• Could cover affected but not transferring
  employees
• Transferee solely liable for failure re own
  employees

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Employee Liability Information

• Transferor must provide transferee with
• Identity and age of employees who will transfer
• Information contained in the statements of
  employment particulars
• Information relating to any collective agreements
  which apply to those employees

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Employee Liability Information

• Disciplinary action within preceding 2 years to
  which DDPs apply
• Grievances within preceding 2 years to which GPs
  apply
• Any legal action taken by transferring employees
  within preceding 2 years, or potential legal
  action by them where transferor has reasonable
  grounds to believe such actions might occur

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Employee Liability Information

• ELI must be provided in writing or other form
  accessible to transferee
• Info can be given in several instalments
• Info can be given via 3rd party
• If info changes between time initially provided
  and completion of transfer, transferor must give
  written notification to transferee

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Employee Liability Information

• Info must be given at least 2 weeks before
  completion of transfer
• unless special circumstances mean this is
• not reasonably practicable
• Breach enforced by tribunal claim
• Compensation no less than 500 per employee for
  whom info not provided, or was defective
• Cannot contract out of requirement to provide the
  information

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Conclusion

• TUPE is manageable
• What do we want to achieve?
• What is our timescale?
• How do we get there?
• Be prepared !

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Jane Fraser, Partner and Head of Employment,
Pensions Benefits ? 0131 271 4127 ?
jane.fraser_at_mms.co.uk www.mms.co.uk