#9735 - Ws8 Tupe I Tutorial

INTRODUCTION
IDENTIFYING A TRANSFER OF AN UNDERTAKING	Transfer will not terminate one’s employment; identifying not always easy though (e.g. sale of shares is not a transfer in undertaking as the company as a separate legal entity is still the owner of the business) – identity of employer must change Example of economic entity: organised grouping of equipment, own management structure etc. When does a business retain its identity? Example:
ACTIVITY 1 – SERVICE PROVISION CHANGE AND TUPE
WHEN DOES TUPE APPLY TO SERVICE PROVISION CHANGES?	Both contracting in and contracting out are transfers of undertakings and will come within TUPE if the conditions in Reg 3(3) are satisfied The Regs aim to protect ongoing service provision, they will not protect one—off tasks Must be substantially the same as those being provided by transferee
TUPE AND EMPLOYMENT PROTECTION	Transfer transfers employee’s employment contracts to the new owner of the undertaking If employee had a claim against old employer, it transfers so claim is against new employer Employees who would have been employed immediately before the transfer had they not been unfairly dismissed before the transfer – these people are protected under the regulations… if the reason for the dismissal was that of the transfer, they are protected Example (last two points are reasons for why they can still claim): Solvent, new employer to claim against
DISMISSAL BECAUSE OF A TRANSFER	Dismissals may take place before or after transfer; employees protected by TUPE will be unfairly dismissed if the principal reason for the dismissal was the transfer itself In this scenario; automatically unfair dismissal; tribunal will not consider reasonableness Only employees who satisfy the eligibility requirements can claim unfair dismissal Whether the dismissal was made because of the transfer itself is a question of fact for the tribunal to decide; would the dismissal have occurred but for the transfer? Any other reason for the dismissal? If the dismissal would not have occurred but for the transfer, automatically unfair If the dismissal would have occurred regardless of the transfer, normal rules of unfair dismissal apply
DISMISSAL FOR A REASON ‘CONNECTED WITH THE TRANSFER’	Protected if for reason connected with transfer The employer will say that the dismissal was due to economic, technical or organisation reasons… and that the reason entailed a change in the workforce – if tribunal do not accept this there will be a finding of UD; if they do accept it… permitted reasons of redundancy or SOSR will apply… if they accept they will go on to consider reasonableness of employer’s actions Berriman case Delabole bought a company who Berriman worked for; Berriman’s salary was changed; he resigned claiming he had been constructively dismissed; claimed dismissal was unfair as it was for reason connected with transfer; employer argued that they had a economic, technical or organisation reason; court rejected this argument saying change in workforce meant change in numbers or job description of workforce; standardisation of pay rights does not entail a change in the workforce
VARYING TERMS AND CONDITIONS OF EMPLOYMENT	...

#9735 - Ws8 Tupe I Tutorial - Employment Law

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