TUPE: Law & Practice

Dr Stephen Hardy was for 13 years a law academic (latterly of the University of Manchester), researching into the European, commercial and employment law. As a result he is a respected scholar and author of numerous books and articles in the fields of employment/discrimination and European law. He now practises at the Bar. Formerly he has worked at the EU Commission and the European Parliament, as well as special advisor to the UK Government (DTI). Wyn Derbyshire originally trained as a research chemist, gaining a PhD from the University of Cambridge before qualifying as a lawyer. He has for many years been interested in financial history. He is writing a series of biographies of tycoons for Spiramus Press.

• PREFACECONTENTSTABLES OF AUTHORITIESGLOSSARY OF TERMS1. TUPE IN CONTEXT1.1. TUPE or not TUPE?1.2. The Original (1977) Directive1.3. The original TUPE Regulations - 19812. EMPLOYMENT RIGHTS UNDER TUPE2.1. 1998 ARD2.2. UK’s Pre-Existing Law before TUPE 19812.3. The former TUPE Regulations 19812.4. ECJ’s Case Law: 1985-20062.5. UK judicial guidance, 1987-20062.6. Consultation rights conundrum of 19962.7. Key TUPE Provisions on Collective rights2.8. The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 19992.9. Practical Issues post-1999 Consultation Regulations2.10. Revising the Directive2.11. Amended Directive – 19983. PENSIONS AND TUPE3.1. The Pensions Exclusion3.2. The ECJ and Pensions Rights under TUPE3.3. Whitney v Monster Worldwide Ltd3.4. Pensions and Public Sector Transfers3.5. TUPE and the Pensions Act 20043.6. TUPE and the Auto-enrolment Regime4. TUPE AND INSOLVENCY4.1. The Old Regime4.2. “Hiving-down”4.3. The meaning of ETO in insolvency situations4.4. Insolvency under the 2006 regime & beyond4.5. Pre-Pack insolvency4.6. Permitted variations of terms and conditions of employment4.7. Notification requirements4.8. Misuse of insolvency proceedings4.9. Insolvency and TUPE Working Together?5. SERVICE PROVISION CHANGES AND TUPE5.1. What is service provision change (aka ‘out-sourcing’)?5.2. Workforce matters in local authority contracts: Best Value5.3. Contracting-Out and TUPE5.4. Ordinary Transfers versus Contracting-Out Transfers5.5. Practical Issues on TUPE with Contracting-Out5.6. SPC, TUPE and the Law5.7. The ‘ETO’ Defences and contracting5.8. Recent developments on SPC6. TUPE 2014 and beyond6.1. TUPE Regulations6.1.1. Types of Transfer6.1.2. Effect of Relevant Transfers6.1.3. Collective Agreements and Trade Union Recognition6.1.4. Employee Dismissal6.1.5. Pensions6.1.6. Employee Liability Information6.1.7. Election of Employee Representatives6.1.8. Failure to Inform or Consult6.1.9. Restriction on Contracting Out6.2. TUPE and Business Transactions6.3. Due Diligence6.4. Negotiation of the Contractual Terms6.5. Other issuesFurther ReferencesUseful WebsitesAPPENDIX 1: COUNCIL DIRECTIVE 98/50/ECAPPENDIX 2: TUPE REGULATIONS 2006APPENDIX 3: TUPE AMENDMENT REGULATIONS 2014