TUPE Claims: when is a change substantial and of material detriment.

Institute of
Employment Rights
TUPE –
In Practice
Liz Stephenson
Service provision
changes
CRATUPEAR amends SPC in Reg 3(1)(b)
slightly to indicate that in order for TUPE to
apply the activities must be “fundamentally
the same as the activities carried out
previously”
Codifies the principle set out in Metropolitan
Resources Ltd v Churchill Dulwich [2009]
IRLR 700
The activities
• As Per the guidance in Enterprise Management
Services v Connect-up Ltd
• ET must identify the activities
• Are the new activities fundamentally or
essentially the same?
• Ignore minor differences in tasks or how they are
performed
• A question of fact and degree
Service provision
changes
OCS Group Ltd v Jones
-Change from a fully serviced
restaurant to cold sandwich cabinets
was not SPC
London Borough of Islington v
Bannon
- Change from 21 hours per week to
few hours per month was an SPC
because responsibility transferred
Who transfers?
• Those assigned to the organised grouping of
resources
• The aim of TUPE is to protect employees but
sometimes people feel that the employer
deliberately chooses to assign particular people to
certain parts of the business that will be transferred
out
• This can be difficult to challenge but look out for
any discrimination (because of age/ sex/ disability/
race etc) or unlawful detriment e.g. because of TU
membership/ activities/ whistle-blowing etc)
Variations to contract
•Variations to the contract (taking place after 31 January
2014 and where the transfer was after 31 January 2014) are
not void if the reason for the variation is the transfer
provided that:1. The sole or principal reason for the variation is an
economic, technical or organisational reason
entailing change in the workforce provided that the
parties agree that variation; or
2. the contract terms that transfer to the transferee
allow such a change to be made contractually
; or
3. The terms have been incorporated into contracts by
collective agreement, it is 1 year after the transfer
and the terms are no less favourable overall
Variations permitted by
the contract
Bateman v Asda Stores Ltd [2009] UKEAT
- A provision in a handbook which “reserved
the right to review, revise, amend or replace
the contents of this handbook” was said to be
effective when Asda imposed a new pay and
work structure on the whole workforce.
- The handbook provided details of pay and
other conditions of employment
- Rush by employers to include variation
clauses? Warning – check new handbooks!
- Argue a Reg 4(9) detriment?
Variations by collective
agreement
Changes to terms that have been incorporated
into contracts by way of collective agreements
can take effect provided that
• It is more than 1 year after the transfer; and
•The rights and obligations in the employee’s
contract are overall “no less favourable to the
employee”
•SO the employer may seek to agree changes by
way of collective agreement and they will not be
void as long as the overall package is no worse
Variations by collective
agreement
•This could be used as an argument against
an employer seeking to de-recognise a trade
union
•Employers may ask union reps to sign to
confirm that they consider the overall
package to be no less favourable – can they?
•Will this be objective or subjective? i.e. it
could depend on the employee’s individual
situation
Variations to Contract
• REMEMBER
• The usual rules still apply in relation to variation
of contract i.e. there are limited ways in which a
contract can be varied:• 1. by agreement (Express/implied)
• 2. where the employer has a contractual right to
vary
• 3. collective agreements
• 4. unilateral variation – E can accept the
breach/stand and sue/R may dismiss and reengage
Collective
Redundancies
• The minimum period of 30 or 45 days
consultation on collective redundancies
can now start before the transfer if the
Transferor and Transferee agree
• Can the Union influence the current
employer not to consent to this? (Is there
a Co-operation Agreement?)
• Does it want to?
Pre-transfer redundancy
consultation - Pros
• Do they want the chance to explore with the
Transferor (existing employer) whether or
not they have any jobs for them
• Do they want to know what is happening
sooner rather than later?
• If there are fears that the new employer will
de-recognise the Union, you may wish to
start consultation pre-transfer and try to
ensure it continues after the transfer so that
the Transferee is seen as having consulted
with the Union
Pre-transfer redundancy
consultation - Cons
• Does it make it more difficult to suggest
– ways of avoiding redundancies
– others who should be in the pool, for example,
the Transferee’s employees?
Do employees want to remain employed for as
long as possible to receive pay and therefore
wish to prolong the consultation process?
Pre-transfer redundancy
consultation
• Employers may want to deal with
redundancies by way of settlement
agreements
• Sometimes they offer severance in return
for the employee objecting to the transfer
so that they never “on-board”
TUPE consultation
- Long enough before a relevant transfer to enable
consultation to take place the employer shall inform
appropriate representatives (the Union, if
recognised) of
- - the fact that the transfer is to take place and the
date of it
- The legal, social and economic implications for the
affected employees
- The measures which he envisages he, or the
Transferee will take in relation to any affected
employees or if no measures will be taken, that fact
TUPE consultation
• If there is no recognised Union
– the employer should arrange for elections of
employee representatives under Regulation 14
(unless there are existing employee
representatives who have authority to receive
information on employees’ behalf)
– If the employer employs fewer than 10
employees they can inform and consult
directly with the employees themselves (reg
13A)
TUPE consultation
- If the employer fails to inform and consult
properly – if, for example, they take a
measure post-transfer on which they have
failed to inform and consult then the
appropriate representatives may be able to
bring a Tribunal claim which could lead to an
award of up to 13 weeks gross pay per
affected employee
TUPE consultation
- If the Union wins in the Tribunal then
affected employees (whether or not they are
Union members) can argue that they should
receive a pay-out as a result of that judgment
- If the Union agrees settlement with the
Respondents it can choose how it deals with
any compensation agreed
TUPE consultation
claims
- The claim should be brought against both the
Transferor and the Transferee
- If there are concerns about whether or not the
Union is recognised (and if there are no elected
employee representatives) the claim would need
to be brought by each employee individually as a
multiple claim
- If bringing the claim on behalf of individual
employees the union rep should obtain the
names and addresses of those affected as soon as
possible as they will all need to go on the form
ACAS Early
Conciliation
- Time limit for such a claim to be lodged in the
Tribunal is 3 months less one day from the
date of transfer
- BUT the parties need to go through the ACAS
notification process first
- They should contact ACAS preferably the day
before the deadline
- SO if the transfer takes place on 26 June, it
would be safest to contact ACAS by no later than
24 September
Early conciliation
- Under the new rules which came in on 6 May
2014 you are not permitted to bring Tribunal
claims unless you have first contacted ACAS and
have an early conciliation certificate number
- Contacting ACAS to attempt early conciliation
“stops the clock” for the purposes of calculating
time limits
- Contact ACAS on
www.acas.org.uk/earlyconciliation
- or 0300 123 11 22
ACAS Early
Conciliation
- Separate notifications will need to take
place in respect of each Respondent i.e.
both the old and the new employers
- Always claim against both because they are
jointly and severally liable
- Ensure that the name of the Respondent is
correct to avoid problems later on between
the interaction of the certificate and the claim
Early conciliation
- Where a claim is being brought on behalf of
multiple Claimants each Claimant in the
group can potentially rely on one of their
colleagues going through the ACAS
conciliation process under Regulation 3(1)
(a) of the Employment Tribunals (Early
Conciliation: Exemptions and Rules of
Procedure) Regulations 2014/254
- BEWARE – time limits will start running
again as soon as the certificate is issued
Tribunal issue fees
Fee for the Union claiming (i.e. a single claim)
is £160
Fee for multiple claimants (who must all be
named on the same form to pay the minimum
multiple fee) is
Between 2 and 10 Claimants - £320
Between 11 and 200 Claimants - £640
201 or more Claimants - £960
Tribunal fee remission
- Advise any employees who are bringing claims in
their own name that they must keep hold of all
evidence of income as this will be needed for a
fee remission application (which can be made at
the time of lodging or within 3 months of paying
the fee).
- Income evidence will be needed including
- Letters showing benefits entitlement, child
maintenance payments, pension etc
- Wage slips and bank statements for the Claimant and
any partner with whom they live
• [email protected]
• 0207 653 3255