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first_imgRelated posts:No related photos. Previous Article Next Article Comments are closed. In on the act: Tupe legislationOn 9 Oct 2001 in Personnel Today Our continuing series of quickguides to major employment legislation, which puts key information at yourfingertips and brings you up to date with the latest developments. This weekSarah Lamont, partner at Bevan Ashford, Bristol, looks at the notorious Tupelegislation and the areas within it which are still causing headaches foremployers and lawyers alike. As she explains, the Government’s proposedamendments to Tupe could help address some of the ongoing issuesOneof the most notorious pieces of employment legislation has to be the Transferof Undertakings (Protection of Employment) Regulations 1981 or”Tupe”, as it is known. Tupe was enacted in the UK, with markedreluctance by the Government at the time, to implement the Acquired Rightsdirective, the European legislation on which it is based. Perhaps it is becausethe regulations were introduced at the eleventh hour that it has caused –  and still causes – so much difficulty ininterpretation, or perhaps it is because their application in practice is somuch wider than originally envisaged.  Whatever the reason,there are still a number of areas within Tupe which cause employers and lawyersheadaches. So it has been with interest that the Government’s proposedamendments to the regulations have been awaited and, at last, the Governmenthas issued its consultation paper. This article looks how the proposals mayhelp to address some of the issues within Tupe.  Scope of theregulationsThis is the mostextensively debated and litigated aspect of Tupe. To combat this the Governmentproposes to adopt a definition of a transfer of an undertaking which is, forthe first time, set out in the Acquired Rights directive, which was amended in1998. But also, recognising that this may not be a complete answer, it proposesmeasures in the context of transfers within public administration and wherethere is a change in the service provider in “contracting out” or”outsourcing”.  In the former case theCabinet Office Statement of Practice “Staff Transfers in the PublicSector” (January 2000) will be applied (which in effect encourages partiesto act in accordance with Tupe even where it is not clear it would apply as amatter of law). In the latter case, the Government wishes to consult on whetherand how the regulations should be amended to ensure that changes in serviceprovision are covered.  Occupational pensionsCurrently, even whenTupe applies, an employee is not entitled to the transfer of any pre-existingright to continue active membership of an occupational pension scheme. For public-sectorstaff transferring to the private sector, the Government has for some timetaken the view that such employees should continue to have pension provisionmade for them. Central guidance togovernment departments and local authorities states that the transfereeemployer is generally required to offer transferred employees an occupationalpension scheme which is “broadly comparable” to that afforded by thepublic-sector transferor.  Obviously,however, this has not affected transfers of employees in the private sector.  The Governmentsuggested two approaches: either preserving the current public-sector policy orby amending Tupe to provide some protection for occupational pension rights forboth public- and private-sector staff. The aim is to “strike a balancebetween protecting transferred employees and minimising extra burdens onprivate-sector employers” and it has outlined options for providing alevel of protection through Tupe which are set out in a background paper whichaccompanies the consultation paper. Transfer-connecteddismissalsThere has been someconfusion as to the inter-relationship between regulation 8(1), which makes adismissal automatically unfair where it is connected with a transfer, andregulation 8(2) which provides an exception from this general rule where thereis an “economic, technical or organisational reason entailing changes inthe workforce” (ETO), for the dismissal. Where there is an ETO, the dismissalcan be fair, if the employer has acted reasonably.Some cases suggestedthat regulation 8(1) and regulation 8(2) are mutually exclusive, so that iftransfer is the reason or principal reason for the dismissal, it is notpossible to look then to see whether regulation 8(2) also applied – ie, whetherthere was an ETO justifying the dismissal. The proposal is to clarify thatthese regulations are not mutually exclusive; ETO reasons are a subset ofreasons for a dismissal connected with the transfer. Changes to contractsAnother live issue hasbeen the extent to which changes can be made to the terms and conditions ofemployees affected by a transfer, even where the employee agrees to thechanges.  Again, case law has suggestedthat any such changes are invalid and therefore not binding on the employee whohas purported to agree them. This has caused uncertainty for transferee staffin particular. The Governmentproposes to make it clear that Tupe does not preclude transfer-related changesto terms and conditions where the reason for making the changes is an”economic, technical or organisational reason entailing changes in theworkforce”. But while this comfort is to be welcomed, it may not prove tobe a cure for all ills in the context of changing terms and conditions becauseof the requirement that an ETO must “entail changes to theworkforce”. Case law on ETOs has shown that this will not coverharmonisation of terms and conditions, for example.Toview the proposals, go to: www.dti.gov.uk/er/tupe/consult.htmlast_img read more

first_img Previous Article Next Article Comments are closed. Nic Paton profiles top supermarkets Tesco, Asda and Sainsbury’s, and looks at their HR strategies and what they have planned for the futureThe UK supermarket and grocery market is worth an estimated £5.7bn, of which, according to researcher Verdict, Tesco accounts for more than half – an astonishing £3.1bn of sales.The dominance of Tesco has been the primary story of the sector for the past decade, ever since it first overtook Sainsbury’s in 1995. As the first UK company to report profits of more than £2bn, the first (and so far only) UK supermarket chain to become a truly global player and increasingly dominant in non-traditional grocery areas – such as convenience stores, clothing and non-food – Tesco has been a success story without parallel.With an enviable track record when it comes to HR and leadership development, it is arguably Tesco’s investment in its people – its ‘Every Little Helps’ slogan sums up the sort of mentality it is trying to engender in its staff – as much as its ethos of ‘pile ’em high, sell ’em cheap’ that has been behind much of its growth in the past few years.“What really helped Tesco get off the ground in the 1990s was that it recognised that its staff were not as well trained as those at Sainsbury’s,” says Andrea Cockram, an analyst at Verdict. “It put a lot of effort into that, and it has paid off.” Perhaps the biggest HR story of the past couple of years, however, has been Morrisons’ swoop on Safeway in March 2004, which consolidated the sector into four key players.Back in 2002, Morrisons did not even get a mention in Personnel Today’s profile of the sector. At the time, the Bradford-based chain, led by veteran retailer Sir Ken Morrison (son of founder William), although highly respected in retailing circles, was for the most part a northern supermarket chain. That all changed in 2003, when the company pounced on the ailing Safeway, which was four times its size. Finally completing the tortuous 14-month, £2.9bn deal in March last year, it catapulted Morrisons into fourth place in the sector, and it now has 435 stores and employs 150,000 staff. But if it was designed to be a glorious finale in the career of 74-year-old Morrison, it has proved sorely misguided. A string of five profit warnings followed – with latest forecasts down as low as £50m, from £320m last year.One of the criticisms of Morrisons since the integration began has been a lack of information given to the City about what is going on. This shyness also extends to the chain’s media relations, it appears, with Personnel Today’s request for an interview with HR director Mike Greenwood being declined – we had hoped to run a page profiling the supermarket.As the former Safeway HR director, Rebecca Ivers, revealed in Personnel Today last year, people were “scared because it happened out of the blue”, rumours were flying around of stores closing and jobs being cut, and everyone was in limbo for 18 months. At the very least, such uncertainty, fear and tension required the sort of sensitive touch that unfortunately appears not to have been forthcoming from Morrison and his team.What is clear is that 2005 is set to be a crunch year for the supermarket sector, argues Verdict. Morrisons may be languishing at the moment, but if or when it pulls things around, it is likely to change the whole complexion of the sector. Of course, Morrisons may yet defy the doomsayers and come out the other end, ready to take on Asda, Sainsbury’s and Tesco. At the company’s last results, Morrison, in a masterly moment of understatement, conceded the past year had been “exacting” for staff. Next year, he added, would be just as hard. For Greenwood and his HR team, too, no doubt.In such a competitive industry, where every customer lost or gained counts, supermarkets have long recognised the value of giving HR a high profile. They all spend vast amounts of time and effort on coaching, leadership, talent management, retention and reward strategies. Retail is an area where HR, successfully at Tesco and less so at Morrisons, is in the spotlight, like few others.   Related posts:No related photos. Supermarket sweepBy Nic Paton on 5 Jul 2005 in Personnel Todaylast_img read more