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.
They're the TUPE, not Toupee, Regulations
I’ve said on this blog before that TUPE issues are guaranteed to bring me out in a cold sweat and I suspect I’m not alone amongst lawyers in saying that. I was very pleased then when I was invited by Butterworths to attend their all day conference on the 18th May on the subject.
I said 'TUPE, not toupee'
This can be a real headache for employers where they have “inherited” employees following a transfer of an undertaking under the TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006. It is quite well known that if TUPE applies to a transfer then if the Transferor (let’s call it NewCo for ease if not originality) dismisses an employee from the transferee (OldCo) for a reason connected with the transfer, the dismissal will be automatically unfair, unless NewCo can show that an “economic, technical or organisational” reason applied entailing changes in the workforce. TUPE has the effect of transferring all employment contracts and rights from OldCo to NewCo.
Apart from the post below I haven’t touched upon these regulations, mainly because they are not the most interesting regulations in the world to read. However, I have been spurred on by posting on the case of Royden & others v Barnetts (see below) and TUPE comes up quite a few times on the search engines as a keyword. In future posts I will look at the TUPE issues on the insolvency of the employer as well as the consultation obligations imposed upon employers by TUPE.
So, what do the Transfer of Undertakings (Protection of employment) Regulations 2006 (TUPE) actually do?
Of course they do I hear you shout. In a recent case before the Liverpool Employment Tribunal a firm in Southport got themselves into a serious mess with the TUPE (Transfer of Undertaking (Protection of Employment) Regulations 2006. TUPE, for those who haven’t had the misfortune to be acquainted with it, are the Regulations that protect employees when a business (“an undertaking” in the Regs) gets transferred from one business to another. The Regs are very complicated and most employment lawyers, if being honest, would admit to loathing them. If an employee is dismissed because of a reason connected with a transfer of an undertaking, TUPE provides that the dismissal is automatically unfair.
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