In DLA Piper's latest case report, the Employment Appeal Tribunal examined the TUPE provisions that mean that employees do not automatically transfer where the transferor is "under the supervision of an insolvency practitioner".
In Alemo-Herron and others v Parkwood Leisure Ltd Case C-426/11 ECJ, the ECJ held that "dynamic" clauses in contracts of employment that refer to collective agreements negotiated and adopted after the transfer are not enforceable against a transferee that has not been able to participate in the negotiating process.
The Court of Appeal has held that, where the reason for a TUPE-related dismissal is to continue running a business and to avoid liquidation, this can constitute an economical, technical or organisational (ETO) reason entailing changes in the workforce, meaning that such a dismissal is not automatically unfair.
Practical guidance on dealing with the benefits of employees who transfer to the organisation under TUPE, including the difference between contractual and discretionary benefits; flexible benefit schemes; and the risks if there is no "ETO reason" for varying terms and conditions.
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