1. Institute of Employment Rights TUPE – In Practice Liz Stephenson

2. 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

3. 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

4. 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

5. 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)

6. 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

7. 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?

8. 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

9. 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

10. 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 re- engage

11. 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?

12. 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

13. 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?

14. 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”

15. 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

16. 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)

17. 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

18. 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

19. 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

20. 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

21. 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 www.acas.org.uk/earlyconciliation -or 0300 123 11 22

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

23. 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

24. 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

25. 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

26. estephenson@pattinsonbrewer.co.uk 0207 653 3255