Transfer of Undertakings (Protection of Employment) Regulations meaning

This Checklist summarises the immigration issues to be considered on a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, and sets out the steps required when participating in a transaction. It additionally highlights the relevant Practice Notes and the associated Precedent materials for reference. Immigration requirements during any transaction where TUPE 2006 does not apply fall outside the scope of this Checklist and are not addressed here. For a general outline of TUPE 2006’s effect and requirements, see: TUPE and asset purchases—overview. Initial considerations and due diligence In any scenario that may fall within TUPE 2006, robust, immigration‑specific due diligence is essential, particularly where a transferor employs sponsored migrants within its workforce. Immigration matters should be addressed at the earliest stage so the parties can plan for and comply with necessary deadlines, etc. Initial enquiries about the immigration status of transferring employees should begin at the start of the transaction process, and care should be taken to...

This checklist summarises the actions to undertake and the matters to weigh up when the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 are engaged on a business disposal or a change in service provision, where appropriate. It additionally flags up the pertinent Practice Notes and Precedent materials. It is not produced for clients, though it can be tailored for them if required. See also the following TUPE-related checklists: What transfers under TUPE, and who is liable—checklist Pension issues on a TUPE transfer—checklist Checklist—immigration-related requirements on a TUPE transfer Drafting a tripartite settlement agreement—checklist Legal background For a summary of TUPE 2006’s general effect and obligations, consult TUPE and asset purchases—overview. Obtain essential information Pin down exactly what is being transferred or contracted out (this could be a business, a business unit, or another economic activity) and how that will be described in the relevant operative documentation, as necessary. See Practice Notes:...

The early conciliation (EC) requirement The early conciliation (EC) requirement—sometimes referred to as mandatory Acas early conciliation—obliges a would‑be claimant to give Acas specified details, including certain information, before issuing an employment tribunal claim, as provided by section 18A(1) of the Employment Tribunals Act 1996 (ETA 1996). For more detail, see Practice Note: The early conciliation requirement. This Checklist explains which claims constitute ‘relevant proceedings’, and identifies those that are caught by the early conciliation requirement either because of: ETA 1996, s 18(1A), or a specific provision in the applicable legislation For guidance on relevant proceedings, see Practice Note: The early conciliation requirement—Relevant proceedings. Where a prospective claimant satisfies the early conciliation requirement, there is, in almost all cases, a statutory extension to the usual deadline within which a claim must be presented to an employment tribunal. This Checklist also indicates where the operative extension provisions on time limits are located, and highlights categories of proceedings to which those extension provisions...

In this issue: TUPE 2006 and European Works Councils ESG and sustainability: employment issues Pensions Prohibited conduct (discrimination etc) Equal pay Whistleblowing Grievances Confidentiality, duties and restrictions: enforcement Financial services and banking: employment issues Employment tribunals Immigration Daily and weekly news alerts Dates for your diary Trackers New Q&As TUPE 2006 and European Works Councils DBT consults on reforming TUPE 2006 and abolishing the legal framework for European Works Councils The Department for Business and Trade has begun consulting on proposed updates to the Transfer of Undertakings (Protection of Employment) Regulations 2006 and on removing the statutory framework for European Works Councils. The proposed TUPE revisions would clarify that its safeguards apply solely to employees, and would end the requirement to divide employees’ contracts among several new employers when a business transfers to more than one successor. Submissions must be made by 11 July 2024. See: LNB News...

(1) Bicknell (2) The British Medical Association v NHS Nottingham and Nottinghamshire Integrated Commissioning Board [2024] EAT 103 The Employment Appeal Tribunal (EAT), in [2024] EAT 103, held that the employment tribunal had been entitled to find that GP clinical lead Marcus Bicknell could not invoke the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE). He was therefore unable to rely on TUPE in challenging his dismissal from NHS Nottingham City Commissioning Group as part of his claim...

Sean Pong Tyres v Moore [2024] EAT 1 What are the practical implications of this judgment? This judgment addresses a novel issue about the reach of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) where an employee brings a claim under the Equality Act 2010 (EqA 2010) for harassment against their employer, and, after the acts complained of, there is a TUPE transfer. Under that transfer, the alleged individual employee perpetrator — potentially answerable to the claimant under EqA 2010, s 110(1) — moves to the new employer (the transferee), yet the claimant’s own employment does not transfer. The practical takeaway for practitioners is the tribunal’s conclusion that the transferor employer’s primary liability to its employee for that harassment does not pass to the transferee employer if the claimant’s employment fails to transfer for reasons that are not connected with the transfer. By way of illustration, as here, where the employment relationship had already ended before the transfer for unrelated reasons, that primary liability remains with...

Governing legislation The process of transferring undertakings is regulated by SI No 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (Ireland) (SI No 131/2003 (IRL)), commonly known as the TUPE Regulations 2003 (IRL). These 2003 Regulations superseded SI No 306/1980 European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations 1980 (Ireland), as later amended by SI No 487/2000 European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) (Amendment) Regulations 2000 (Ireland). The earlier regime gave effect to the EU Acquired Rights Directive 77/187/EEC in Ireland. Relevant transfers Numerous European Court of Justice (ECJ) rulings have clarified what amounts to a transfer for the purposes of Directive 77/187/EEC and, in turn, the TUPE Regulations 2003 (IRL). A detailed review of that body of caselaw lies outside this Practice Note and is not attempted here. In essence, a transfer arises where the undertaking keeps its identity after the handover; in other words, where the undertaking is passed on as a going concern,...

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, confers extra protection on employees when a dismissal arises in the context of a transfer. EU‑sourced legislation, including much of TUPE 2006, enacted to give effect to the UK’s obligations under EU law (for example, Directive 2001/23/EC, the Acquired Rights Directive (ARD)), and still applicable in the UK at the end of the Brexit transition period/IP completion day, continues in force as assimilated law. For further information, see Practice Note: Assimilated law. Enhanced protection against dismissal An individual benefits from this enhanced protection only if they can pursue an unfair dismissal claim—meaning they must be an employee (see Practice Note: Employee status) with the required two years’ continuous employment. For further information, see Practice Note: Entitlement to claim unfair dismissal...

Service provision changes (SPCs) This Practice Note explores service provision changes (SPCs) under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, reg 3(1)(b), arising when activities are outsourced, brought back in-house, or a contractor or service provider is replaced. It explains the approach for cases where the relevant transfer under TUPE 2006 occurs on or after 31 January 2014, and addresses scenarios typically encountered in outsourcing, insourcing, or a change of provider. The Note also clarifies how SPCs operate in those contexts. For the pre-31 January 2014 position, refer to the government’s TUPE 2006 guidance (June 2009)—applicable only to transfers on or before 30 January 2014 and not updated in light of more recent case law—and to Practice Note: TUPE—the pre-January 2014 position [Archived]—Service provision changes. A switch in service provider can constitute a ‘service provision change’ within TUPE 2006, irrespective of whether it is also a ‘business transfer’. For further detail on business transfers, see Practice Note: TUPE—business transfers. Distinct from...

Definitions CA 2006 means the Companies Act 2006; Company means [ insert name of target company ] Limited, incorporated in England and Wales under number [ insert company number ]; Director refers to a director of any Group Company, including a shadow or de facto director; Employee has the meaning in section 230(1) of ERA 1996 as applied to any Group Company; EqA 2010 means the Equality Act 2010; ERA 1996 means the Employment Rights Act 1996; [ Group means the Company and each of the Subsidiaries, and Group Company means any of them; ] [ Subsidiaries means the subsidiaries of the Company; ] [ subsidiary means [ a subsidiary as defined by section 1159 of CA 2006 OR a subsidiary undertaking as defined by section 1162 of CA 2006 ]; ] Contractor denotes any individual working in a Group Company’s business who is neither an Employee nor a Worker; TUPE 2006 means the Transfer of Undertakings...

Notice to employees of change of employer—private M&A—asset purchase With effect from [ insert date of acquisition ], the [ part of the ] [ insert name of the business being acquired ] business you work in transferred as a going concern to [ insert buyer name ]. Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, you automatically became an employee of [ insert buyer name ]. Your terms and conditions remain those you had with [ insert seller name ], and your rights [ other than those relating to your occupational pension ] are unaffected. Your continuity of service is preserved; only your employer’s name has changed. [ The employee information held by [ insert seller name ] has also transferred to [ insert buyer name ]. ] Please sign and return the enclosed duplicate to acknowledge receipt. Queries: contact [ insert name and details of the person to be contacted ]. Yours sincerely,_________for and on behalf of [ insert buyer name...

Presented as a table, available to download in Word or Excel, this Precedent enables a transferor to set out employee liability information (ELI) for disclosure to a transferee, satisfying the obligations under regulation 11 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE 2006) as required...

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, reg 4 Where a relevant transfer occurs under these provisions, there is a novation imposed by statute of the contracts of employment of the staff who transfer; the incoming employer stands in the place of the outgoing employer, and each employment contract continues after the transfer as if it had been originally concluded between the employee and the transferee throughout for all relevant legal purposes thereafter...

If there is a share purchase, the employer’s identity remains the same and, if the incoming owner wishes to have a key employee or the MD enter into a fresh long-term agreement, this will need to be negotiated between the parties. For further details on employment issues in share purchases, see Practice Notes: Share purchases—employment issues acting for the buyer Share purchases—employment issues acting for the seller Where an asset purchase falls within the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, then—subject to an employee’s right to object to the transfer (see Practice Note: Employee transfer—Employee right to object to the transfer)—the employment contracts of those employed by the transferor and assigned to the organised grouping of resources or employees that is the subject of the relevant transfer, and which would otherwise be ended by the transfer, move automatically to the transferee and continue after the transfer as though originally made between the employee and the transferee...

For general guidance on demergers, see: Demergers—overview. You might wish to assess: whether the intended demerger constitutes (a) a business transfer or (b) a service provision change (SPC) under the Transfer of Undertakings (Protection of Employment Regulations) 2006 (TUPE 2006), SI 2006/246 if so, the consequences of a relevant transfer under TUPE 2006, SI 2006/246 for employees of Company A (ie would the transfer result in those employees moving to Company B, which will depend on the nature of the transfer) if the employee cannot establish the sought-after right under TUPE 2006, SI 2006/246, whether they can contend that they are in fact (and were pre-transfer) employed by Company B, despite, for example, holding a contract of employment with Company A Is there a business transfer under TUPE 2006?...