TUPE - Employment law update

This is the latest in our series of blogs offering a general guide to some of the most contentious areas of employment law legislation - this time the focus is on TUPE.

TUPE regulations

When we mention TUPE to our business clients we usually expect them to give a big groan! However, TUPE regulations often need to be taken into account to avoid costly mistakes.

TUPE regulations have always had the potential to cause issues because the Transfer of Undertakings (Protection of Employment) Regulations are very technical and the details make them complex.

Recent cases

Recent cases have highlighted one key aspect of the TUPE regulations where there has been a service provision change during a transfer.

Businesses need to take into account the TUPE regulations to then determine which of their employees do or do not retain their current terms and conditions with their new employer.

Arguing that there has been a service provisions change to avoid the TUPE regulations can cause issues and should not be relied upon.

A 2016 Salvation Army case

A case from 2016 involved the Salvation Army, a Christian and charitable organisation, who were taking over a contract to look after homeless people in Coventry.

This involved the TUPE transfer of employees from another charity who had previously supported 10 sites that accommodated homeless people.

The Salvation Army wanted to reduce this to just 2 sites and make further changes to the service they provided to the homeless.

When the claim was brought to the employment tribunal, the Salvation Army argued that there had been a service provision change and therefore the employees of the charity would not be covered by TUPE but the judge disagreed claiming that the service was fundamentally the same.

The Gig Economy

The growth in the “Gig Economy” has highlighted another aspect of TUPE and it could become more difficult to be clear of an employee’s employment status.

In 2017, the Independent Worker’s Union of Great Britain (IWGB) brought a case against a courier company.

They argued that the firm had wrongly categorised a courier as an independent contractor and failed to pay holiday pay after it bought out the courier’s previous employer. The union won the case but although the courier was awarded his outstanding pay, they are still fighting for the courier to be recognised as a “worker” under TUPE transfer and therefore gain other associated employment rights.

If they are successful in this next stage, it may change the TUPE transfer rules to cover workers as well as employees.

More complex employment relationships

As employment relationships become more complex it is important for employers to get the right advice and information about how TUPE can affect them.

Getting the right information at an early stage is vital as early consultation with employees is an important part of the TUPE process.

Getting the right advice

So, if you are involved in taking over services from another company, changing your outsourcing arrangements or rewriting tenders to make changes to your services then it is likely that you will need advice about TUPE.

Similarly, if you are an employee that feels that their employer is not following the correct TUPE rules, we can offer you our support and advice.

If you need any help with employment law issues do get in touch with Daniel Zakis at our Solihull office on 0121 705 7571.

This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.