Yesterday I went along to the above conference organised by the legal publishers, Lexis-Nexis. It was a whole day set aside to discussing one of the most difficult and complex areas of UK law: the Transfer of Undertakings (Protection of Employment) Regulations 2006 or TUPE for short. I always think that trying to get to grips with TUPE is a bit like trying to eat blancmange: just as you get a handle on it it slips through your fingers. Then you wonder why you bothered. Unlike blancmange, which has no purpose in life as far as I can see, TUPE is a very important and necessary thing. Without it, when one business takes over another all employees of the old business would be out of work because their contracts of employment would be “novated” by law. TUPE works to transfer the employee across to the new business and to make it automatically unfair to dismiss an employee for a reason related to the transfer.
It also provides that where there is a “service provision change”: think of a local education authority outsourcing its school meals service to a private company: all the dinner ladies switch from working for the school/LEA to the private company. This can also have the bizarre effect that where, to take a law firm as an example, a large client moves its business away from that law firm, the employees who work on that particular client’s work will also move across to the new law firm. If the client moved its work because it was unhappy with the service provided by those lawyers it still ends up with the same people doing its work. Madness.
As ever with the law, things ain’t quite that straightforward and there are many exceptions to the general rules and conflicting decisions.
I therefore had high hopes for this conference, which weren’t disappointed. There were some high profile speakers and it was chaired by Michael Rubenstein, the editor of the Industrial Relations Law Reports. The sessions covered most of the areas I was interested in, such as when the regulations apply, how employers should prepare for a TUPE transfer, what the legal effects are and the law on harmonisation of contracts post-transfer. I will write a post on the main aspects of TUPE in due course but one of the issues which I find crops up quite regularly is how TUPE and the insolvency laws interact, most particularly where a company goes into administration and then arises phoenix-like from the ashes by a new purchaser. If the administrator makes redundancies in order, to use Andrew Stafford QC’s memorable phrase “to be fattened for the pot”, in order to make it more attractive for a purchaser then protection under TUPE will apply if it can be proved that the redundancies were made with a particular purchaser in mind. If the redundancies are made more generally, just to make the company more attractive, then protection may apply but there are conflicting decisions on this.
In all it was a good day, at a good venue and with an excellent set of notes to take away. For more details on courses run by Lexis-Nexis see here.
So if you have any issues on TUPE please get in contact before it slips through my fingers. Usual contact details: firstname.lastname@example.org or 0207 464 8433