Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • 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
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • 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
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

EuropeService provision changesBrexitLegal opinionTUPE

What would happen to TUPE if the UK left Europe?

by Dan Peyton 3 May 2016
by Dan Peyton 3 May 2016 Politicians take the stage at a recent Brexit debate/Simon Ford/REX/Shutterstock
Politicians take the stage at a recent Brexit debate/Simon Ford/REX/Shutterstock

As part of our series of articles looking at the impact of a potential Brexit on employers and their legal obligations, Dan Peyton looks at what might happen to TUPE legislation.

As we await the outcome of the Brexit vote on 23 June, there will be much crystal ball gazing about the possible effects of a vote to leave, particularly among employment lawyers.

TUPE resources

EU referendum: 12 European cases that have shaped UK employment law

Harmonise terms and conditions following a TUPE transfer

Employment law manual updates: TUPE

This is because much of our domestic employment legislation is driven by the EU, and so it seems to be one of the areas naturally suited to post-Brexit reform in the event that there is a vote to leave.

Since its 1981 inception, The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) has been a bugbear for both advisers and their clients.

TUPE represents the UK implementation of the Acquired Rights Directive 2001/23 EC. It transfers employees’ rights connected to their contracts of employment (including their statutory rights and the employer’s liabilities) when there has been a transfer of undertakings or a service provision change. As such, it is a statutory intervention designed to protect employee rights.

There are aspects of TUPE that can cause consternation, particularly among non-EU based businesses that are not accustomed to the restrictions it imposes on what can be done in respect of transferring employees and the formalities required of the parties to a transfer.

Among these issues are: the scope of TUPE and the wide variety of transactions it captures; the effects of the automatic transfer on transferring employment rights and liabilities; limitations on the right to dismiss transferring employees before or after the transfer; restrictions on the right to change contracts; and the obligations to engage in collective information and consultation with affected employees.

Candidate for reform?

So, following a vote to leave the EU, TUPE might seem like an obvious candidate for repeal or reform. It is relatively simple in design but can be highly complex in its application, mainly because of the way that the Court of Justice of the European Union (CJEU) and the other UK courts have dealt with attempts to circumvent it.

The result is that TUPE may apply in circumstances that are not obvious or intuitive (for example, the loss of a client from one professional services firm to another, or a change of leaseholder).

Although possible, a wholesale repeal of TUPE is unlikely as it has been part of the legal landscape for over three decades. Further, the rationale for its existence is employee protection, and it would be a bold government that eliminated the rights of employees on the transfer of an undertaking, especially since special provision is already made under TUPE for the transfer of distressed businesses.

It is possible, however, that modifications could be made to TUPE in an attempt to eliminate or ameliorate some of its uncommercial aspects.

For example, the service provision change Regulations could be repealed. However, these provisions were domestic creations in any event and when this was mooted during the consulting prior to the 2006 changes to TUPE, it appears that a significant number of businesses were not in favour of such a repeal because it would have led to legal uncertainty.

The potential political difficulties in repealing TUPE as a whole may also apply to the repeal of the unfair dismissal provisions, or the automatic transfer provisions.

Information and consultation

More susceptible to change could be a loosening of the formality surrounding the information and consultation obligations, for example by dispensing with the need for collective consultation, or to limit the obligation to larger businesses.

An extension of the right of the transferee to make changes to the contractual terms of the transferring employees, for example to harmonise terms and conditions, may also be a likely target.

This seems to be the most likely approach in a post-Brexit environment, seeking to balance the needs of businesses with a well-established regime of employee protection.

A further issue that might affect the application of TUPE is the approach that employment tribunals and courts would take when interpreting and applying TUPE, whether or not the Regulations themselves remain unchanged.

It would no longer be a requirement for our domestic tribunals and courts to apply CJEU decisions when interpreting and applying TUPE. Therefore, there is a possibility that domestic law will begin to diverge from that of the rest of the EU. However, it seems likely that such a change in interpretation and application would represent a gradual, rather than overnight, process.

Even without being required to follow EU case law and the wording of the Directive, the fact remains that the legislative purpose behind TUPE is what it has always been, namely, the protection of employees’ rights where there is a transfer of an undertaking and this is likely to inhibit dramatic change.

Therefore, while it is impossible to predict with certainty what effect Brexit would have on TUPE, it seems more likely than not that change would be limited (although potentially of some importance) and gradual.

Avatar
Dan Peyton

Dan Peyton is managing partner of the London office of international law firm, McGuireWoods

previous post
Restaurant tipping practices face regulation
next post
Occupational health research round-up: May 2016

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

You may also like

Lego leader lands top spot for AI in...

22 Sep 2023

Platform workers legislation could drive Uber out of...

20 Sep 2023

TUPE: Share plan transferred to new employer, judge...

7 Sep 2023

PepsiCo appoints Dannii Portsmouth as CHRO

5 Sep 2023

EU-derived equal pay protections to be safeguarded

30 Aug 2023

Global Talent Visa fast-track scheme is a ‘flop’

18 Aug 2023

Unions urge UK to better regulate AI

20 Jul 2023

UK needs more EU workers, says former cabinet...

10 Jul 2023

Real wages in UK almost 3% below 2008...

10 Jul 2023

Top 10 HR questions June 2023: Time off...

4 Jul 2023

  • Discover the value of CIPD accreditation PROMOTED | See how the CIPD can increase your earning potential...Read more
  • What does it mean to be an HR professional in 2024? (survey) PROMOTED | The world of HR is changing rapidly...Read more
  • The Contractor Management Mastery Pack: Everything you need to manage and pay global contractors PROMOTED | Answers to cross-border...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 2023

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2023 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • 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
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+