What should the employer do where an employee representative for informing and consulting on a TUPE transfer ceases to act as such?
Where a transferee has no need for the employees transferred to it under TUPE, can the selection pool for redundancy include only the transferred employees, or must it also include the transferee's existing workforce?
What happens if employees invited to elect representatives for informing and consulting on a TUPE transfer fail to do so?
What happens if the transferor or transferee fails to consult or inform adequately on a TUPE transfer?
If a client changes supplier because it is not happy with the performance of the supplier’s employees, can those employees be prevented from transferring to the new supplier if the contract change amounts to a TUPE transfer?
Can an employee refuse to transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006?
If an employee in a TUPE situation refuses to transfer, will he or she be entitled to a redundancy payment?
If an employee in a TUPE situation refuses to transfer, to which employer should his or her resignation be submitted?
What is the main effect of the TUPE Regulations 2006 for employees?
Can the transferee change the contracts of the incoming employees following a TUPE transfer, to harmonise them with those of its existing employees?
Where the transferor paid a particular mileage rate to transferred employees, is the transferee obliged to continue to pay them at this rate even though it is higher than its normal rate?
Is there any obligation on employers to increase the holiday entitlement of TUPE-transferred staff to match that of their existing workforce?
Can an employer harmonise the contracts of TUPE transferred employees with those of its existing workforce where the changes will be beneficial to them?
What happens to trade union recognition when a business is transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006?
Would any collective bargaining agreements be carried over to the transferee on a TUPE transfer?
Is continuity of employment maintained if there is a change of employer?
Where an individual is TUPE transferred does his or her continuous service start from the date of the transfer or from the start of employment with the transferor?
Under the TUPE legislation, where an employee has a bad attendance or disciplinary record, is the transferee obliged to accept the employee?
Does an employee need a minimum period of service to bring a claim of unfair dismissal when dismissed by reason of a TUPE transfer?
Is a transferee able to rely on assurances from the transferor that it carried out the necessary checks on the transferred employees' immigration status, or must it carry out its own checks?
Whether or not the pool for redundancies following a transfer must include the transferee’s existing workforce depends on the circumstances.
In the event of a TUPE transfer, where the sole or principal reason for a dismissal is the transfer, the dismissal will be automatically unfair. However, if the dismissal is for an economic, technical or organisational (ETO) reason entailing changes in the workforce, it will not be automatically unfair.
In redundancy situations the selection pool normally includes only the employees who are required, under their contracts of employment, to do the potentially redundant work. Following a transfer, where the transferred employees are doing a specific job under their contracts of employment that none of the transferee’s existing employees can be required to do (for example if the transferred employees are working on a specific product or carrying out a specific function, for which there will no longer be a requirement), it is likely that the pool will comprise only those employees transferred. This is because it is only those employees who are required to carry out the reduced work. The dismissals will be for an ETO reason, because the work that the employees do no longer exists.
However, where the transferee’s existing employees can be required under their contracts to do the same work as the employees who have transferred, the existing employees should also be included in the selection pool. If the employer includes only the transferred employees in the pool, it is arguable that the principal reason for the dismissals is the transfer, as the selection has been made purely on that basis, making the dismissals automatically unfair. Even if the employer is able to show an ETO reason for the dismissals, it still needs to be able to show that the selection process is fair (under the usual requirement of reasonableness). Selection based on the fact that employees have transferred, rather than on other objective criteria, is unlikely to be reasonable.
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