Term
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Definition
- preserves empployees terms and conditions in a business transfer or service provision change
- TUPE applies to economic and non-economic activities, but not available to share sales |
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Term
| What is the test for a business transfer? |
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Definition
1. There must be a transfer of an economic entity and
2. The economic entity must retain its identity after the transfer |
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Term
| How do you determine whether a economic entity has retained its identity after the transfer? |
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Definition
Spijkers test - shopping list of factors which determines whether there is a business transfer:
1. what type of business is it
2. is there a transfer of tangible assets
3. is there a transfer of customers
4. have the majority of staff been taken over
5. what degree of similarity is there between the activities of the outgoing business and the incoming one and
6. what is the duration of any interruption to the business |
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Term
| What is a service provision change? |
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Definition
1) there is a service provision (i.e outsourcing/insourcing, subsequent sourcing)
2) the activities carried out pre and post transfer are fundamentally the same
3) there is an organised group of employees in GB who carries out the activities
4) the activities concerned do not consist wholly/mainly of the supply of goods for the client's use |
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Term
| What is the effect of TUPE on employees? |
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Definition
1) Employees employed by the transferor (old employee) before TUPE is automatically becomes employed to the transferee. This also includes employees who were immediately employed before the transfer
2) Employees are employed under the same terms and conditions
--> changes in t&c?
3) Employees who object to being employed by the Transferee will not transfer. The transfer will act to terminate their employment |
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Term
| What is the effect of TUPE on the Transferee? |
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Definition
1) On completion of relevant transfer, all the transferor’s rights, duties, powers and liabilities shall be transferred to the Transferee
2) No transfer of criminal liability
3) Transferor and Transferee will be jointly and severally liable for the Transferor’s failure to inform and consult appropriate representatives of the affected employees
4) If an employee resigns with immediate effect before the transfer due to a repudiatory breach (i.e. employer’s actions) then this will be considered constructive dismissal
5) Employee can resign if substantial changes to his working conditions are detriment |
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Term
| What is the effect of TUPE on pension schemes? |
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Definition
| If transferor provided a pension scheme, the Transferee will need to provide some form of pension scheme, although the new pension scheme need not be the same |
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Term
| What would the status of dismissal be if the Transferor/Transferee had an ETO defence? |
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Definition
| dismissal will either be regarded as redundant or some other substantial reason |
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Term
| What are the elements of ETO? |
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Definition
1) There must be an economic, technical or organisational reason for dismissal and
2) That ETO reason for the dismissal must entail a change in the workforce |
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Term
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Definition
1) Economic – reason relating to profitability or market performance of the Transferee’s business
2) Technical – reason relating to the equipment/production process which the Transferee operates
3) Organisational – reason relating to management/organisational structure of the Transferee’s business (i.e. location, numeric change in workforce) |
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Term
| What may entail a change in workforce? |
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Definition
| change in numbers of people employed or change in place where employees carry out their work |
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Term
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Definition
• Damages for unlawful dismissal/employees who have resigned in response to unlawful variations to their contract
• Declaration – to declare contractual variation to be void
• Re-engagment/reinstatement
• Failure to consult – compensation of up to 13 weeks pay
• Failure to provide Employee Liability information – Transferee can apply to ET for compensation of at least £500 per employee unless it is unjust |
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Term
| Defences to variation of contract |
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Definition
| ETO reason, or contract permits variation |
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