What is a TUPE transfer?
Where employees are dismissed as a result of a TUPE transfer, will the dismissals be unfair?
Is there a minimum number of employees that must be affected before a transfer under TUPE can take place?
What constitutes a transfer of an undertaking under the TUPE Regulations 2006?
What is a service provision change under the TUPE Regulations 2006?
In a TUPE situation which employer is the "transferee" and which the "transferor"?
Where only a few employees will transfer to a new employer under TUPE, does the obligation to inform and consult still apply?
Under reg.7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) a dismissal will be automatically unfair if the sole or principal reason for the dismissal is the transfer itself, or a reason connected with it that is not an economic, technical or organisational (ETO) reason entailing changes in the workforce. This is the case whether the dismissal is before or after the transfer. If the dismissal is a pre-transfer dismissal the liability for the automatically unfair dismissal will pass to the transferee.
The transferor cannot rely on the transferee’s ETO reason to dismiss employees before they transfer. It must have its own ETO reason relating to the conduct of its business; this is unlikely to be the case in relation to the dismissal of employees who would otherwise transfer.
An employee must meet the minimum continuous service requirement (ie at least two years if his or her employment commenced on or after 6 April 2012 or at least one year if it commenced prior to that date) to bring a claim for automatic unfair dismissal because of a TUPE transfer. This is unlike claims relating to other automatically unfair reasons for dismissal, where there is no service requirement.
Where an employer can establish an ETO reason, the dismissal will not be automatically unfair, but will be treated as a dismissal for some other substantial reason, or redundancy, if the statutory definition of redundancy is met. The dismissal is therefore subject to the normal test of fairness under the Employment Rights Act 1996. This means that the dismissing employer can still be liable for unfair dismissal. If the dismissal is pre-transfer, the liability will remain with the transferor. If it is post-transfer, the transferee will be liable.
What is an "economic, technical or organisational reason" for dismissal under the TUPE Regulations 2006?
In a TUPE situation is the transferor required to obtain its employees' consent before passing on information about them to the transferee?
In a TUPE situation, is the transferor obliged to give the transferee the personnel files of transferred employees?
What is "employee liability information" under the TUPE Regulations 2006?
Is an employer obliged to consult with employee representatives on a TUPE transfer?
Who has to be informed and consulted on a TUPE transfer?
What is the purpose of any consultations that take place on a TUPE transfer?
The duty to consult in a TUPE situation arises where an employer envisages taking measures in relation to affected employees, but what sort of measures would this cover?
What is the time period over which the employer must consult on a TUPE transfer?
What is the time frame for electing employee representatives for informing and consulting on a TUPE transfer?
How many employee representatives are necessary for informing and consulting on a TUPE transfer?
Can an employer place restrictions on who can stand as a candidate in elections for informing and consulting on a TUPE transfer?
What duties do employee representatives elected for informing and consulting on a TUPE transfer have?
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