Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Service provision changesEmployment lawTUPE

Legal Q&A TUPE 2006

by Personnel Today 14 Mar 2006
by Personnel Today 14 Mar 2006

Q What transfers are covered by TUPE 2006?
A TUPE 2006 widens the scope of a “relevant transfer” to specifically include contracting out, contracting in and re-tendering. For there to be a relevant transfer, there must be “an organised grouping of employees which has, as its principle purpose, the carrying out of activities concerned on behalf of the client”. In other words, doing the work that is being transferred.

Q Are there any exceptions?
A Single specific events, short-term services and activities concerned wholly or mainly with the supply of goods are not covered, but it is not yet clear how this will be interpreted. The definition also fails to deal with situations where services are split between more than one service provider.

Q When can amendments be made to the terms and conditions of transferring staff?
A Only where the principle reason for the variation is an economic, technical or organisational (ETO) reason entailing changes in the workforce, or in some insolvency situations where variations are agreed with appropriate representatives.
It is still not possible to justify a change for the purposes of harmonising terms with those of existing employees. In this situation, an employer would need to terminate the employment of the transferring employees, and then immediately offer to re-engage them on the new terms and conditions. However, this gives rise to the risk of unfair dismissal claims.

Q Are transfer-related dismissals lawful?
A A dismissal will be automatically unfair if it is because of the transfer or for a reason connected with it, unless there is an ETO reason for changes in the workforce. However, staff must still have one year’s service to bring a claim unless they can argue unfair dismissal for asserting their statutory rights under TUPE.
If there is to be a change to working conditions as a result of the transfer that is a “material detriment”, employees will be able to resign and claim unfair dismissal. This is not as strict a test as a fundamental breach of contract for the purposes of a constructive dismissal claim, and there is no entitlement to notice pay or to the statutory dismissal procedures.

Q Are there any additional obligations for transferors/transferees?
A TUPE 2006 imposes a duty on the transferor to provide certain information to the transferee about employees who are transferring, including:



  • the identity and age of employees

  • their statements of terms and conditions of employment

  • any disciplinary proceedings or grievances (under statutory procedures) issued in the preceding two years (irrespective of Acas guidance and data protection obligations)

  • any court or tribunal cases brought in the preceding two years, or which the transferor has reasonable grounds for believing an employee might bring

  • any collective agreement which will have effect after the transfer.

Information must be no more than two weeks old and any changes must also be notified. It is not possible to contract out of this obligation. The tribunal can award the transferee compensation starting at a minimum of 500 per employee for whom the information was not provided.

It is advisable to have comprehensive provisions about the ongoing notification of employee information throughout the provision of the services in the transfer agreement. This will ensure the client remains aware of how the services are being provided, and will assist when structuring any future transfers or service provision changes.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

Q Are there any other major changes?
A TUPE 2006 also introduces joint and several liability for a failure to inform and consult. Therefore, it is important that the parties undertake this exercise collaboratively or, if one party is going to take responsibility for this (usually the transferor), that appropriate warranties and indemnities are included in the transfer agreement.

Changes to the territorial application of TUPE mean that staff who work overseas may also be caught by the transfer. The scope of a transfer must be carefully considered at the outset.

Q What should we do now?
A The regulations apply to any transfer that takes place on or after 6 April 2006. Further transitional provisions exist for the duty to provide employee liability information, and information and consultation obligations. You should review proposed transfers and transfer documentation now to see whether they fall within TUPE 2006. Existing outsourcing arrangements should also be reviewed to ensure that appropriate provisions are in place when the service provision comes to an end.


Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Avon police chief admits race recruitment blunder
next post
Age discrimination is already illegal

1 comment

mavisclark 22 Jan 2014 - 11:22 am

I live in a block of apartments and it has been decided to deploy the present management and go RTM. We have been informed that the RTM management will be responsible for the Eployment of the Scheme manager once the change is in place even though we are employing another management company. Is this True? and what exactly will the RTM company be responsible for

Comments are closed.

You may also like

Minister defends Employment Rights Bill at Acas conference

16 May 2025

CBI chair Soames accuses ministers of not listening...

16 May 2025

EHRC bows to pressure and extends gender consultation

15 May 2025

Contract cleaner loses EAT race discrimination appeal

14 May 2025

Construction workers win compensation claim against defunct employer

9 May 2025

Zero-hours workers’ rights to be extended from beyond...

8 May 2025

Employment tribunal backlog up 23% in a year

7 May 2025

Ministers urged to outlaw misuse of NDAs

7 May 2025

Employment Rights Bill must be tightened to protect...

1 May 2025

Lords criticise ‘opaque’, ‘on-the-hoof’ Employment Rights Bill

30 Apr 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+