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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