Lesson 6 – the TUPE Star Burns Bright

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This year the TUPE star has led us to discover that directors may not be wholly and mainly assigned to an undertaking such that they should transfer with the rest of their staff. Their higher level functions may take them out of the organised grouping of employees who should transfer. Meanwhile, the meaning of organised groupings of employees and service provision changes has raised some issues this year. For an organised grouping of employees to exist, it is not enough that employees carry out the majority of their work for a particular client. Rather, employees must be deliberately organised with regard to the requirements of the client and be identifiable as members of that client’s team.  Without an organised grouping of employees there may be no TUPE transfer of staff on a service provision change.

We also know that staff who object to a transfer because of a material shift in their base of work post transfer will be free to claim constructive dismissal – this being a significant change in their working conditions and a headache for transferees needing to consider changes to working environments or practice post transfer.

Finally, the government is considering a period of “policy design” for TUPE going forward. What this means is uncertain but don’t expect wholesale reform.

Carol – Angels from the realms of TUPE

Abellio London v Centre West Buses
Eddie Stobbart Ltd v Moreman and Others
Edinburgh Home-Link  Partnership and others v The City of Edinburgh Council and others

For more information, help or advice please contact Tim Davies on 0191 211 7927 or email [email protected].