Business Transfers (L18) Flashcards
What do the TUPE Regulations stand for?
The Transfer of Undertakings (Protection of Employment) Regulations.
What are the different sources of law regulating business transfers?
At common law, the contract of employment terminates on transfer.
EU Directives.
- Acquired Rights Directive – 77/187.
- Amending Directive – 98/50.
- Consolidating Directive – 2001/23.
TUPE Regulations 1981.
TUPE Regulations 2006 (as amended by 2014 regs).
What are standard transfers under TUPE Reg 3(1)(a)?
“Transfer of an undertaking, business or part of…
To another person.
Or an economic entity.
Which retains its identity”.
How does Reg 3(2) define an ‘economic entity’?
“An organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary”.
What were the brief facts of Spijkers 1986 ECJ?
Sale of a slaughterhouse. Business activities had already ended, no good will remaining.
Upon sale, similar business activities were started up, and some of the same staff were employed.
What is the test that Spijkers 1986 ECJ provides us for whether an economic entity has retained its identity?
Type of business?
Tangible assets transferred?
Value of intangible assets?
Are the majority of staff taken over?
Do the customers transfer?
Degree of similarity between activities?
Duration of any interruption of those activities?
What does Rask v ISS Kantineservice 1993 ECJ tell us about the EU approach to whether contracting out is covered as a standard transfer under reg 3(1)(a)?
Directive applied where private company contracted out the operation of staff canteen.
What does Schmidt 1994 ECJ tell us about the EU approach to whether contracting out is covered as a standard transfer under reg 3(1)(a)?
Directive applied when a bank contracted out cleaning done by sole cleaner.
What does Süzen 1997 ECJ tell us about the EU approach to whether contracting out is covered as a standard transfer under reg 3(1)(a)?
School was engaging company A to do the cleaning, then moved over to company B. would the employees from company A transfer over?
Depends whether assets and/or a significant part of the workforce were transferred.
What is the UK approach to a service provision change?
Extended by 2006 Regulations (reg3(1)(b)).
Applies to outsourcing, ‘insourcing’ and re-tendering.
Where, prior to the transfer, there is an organised grouping of employees assigned to carry out activities with that principal purpose.
E.g. If a cleaning service has multiple different clients, sends a different cleaner every day to an individual client. This would make it difficult to show an organised grouping of employees.
Unless it is a one-off or the contract is mainly for the supply of goods for client’s use.
What is transferred for the purposes of TUPE?
Employment contracts (reg 4(1)).
All rights (except pensions) are transferred.
‘All the transferor’s rights, powers, duties and liabilities’ (reg 4(2)).
All rights / liabilities etc of the employer to the employees.
What does reg 4(1) tell us about who is transferred?
Part of an undertaking?
Those assigned to grouping of resources or employees.
Are those dismissed before transfer covered by TUPE?
Litster v Forth Dry Dock 1989 HL.
Those employed immediately before the transfer or who would have been employed but for a dismissal – Reg 4(3).
Are those who don’t want to transfer covered by TUPE?
Objection where material detriment (Regs 4(7) – (10)).
Who is an employee for the purposes of reg 2(1)?
Dewhurst v Revisecatch Ltd t/a Ecourier ET2201909/18.
Decision is NOT binding — it’s a tribunal.
Held that workers fall under the definition of employee under TUPE.
This means they could also be transferred.
