Tupe Flow Chart 5s2c3d

TUPE Is there a relevant transfer? Reg 3(1)(a) Is there an economic entity? Reg 3(2) an economic entity is an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary Reg 3(1)(a) has that economic entity been transferred? Spikers – question of fact Reg 3(1)(b) has there been a change in a service provision in which activities have ceased and reg 3(3) applies? Reg 3(3)(a) immediately before the service provision change (i) there is an organised grouping of employees in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client ; (ii) the client intends that the activities will, following the change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use

Effect of relevant transfer? Reg 4(1) an employee’s contract of employment is not brought to an end by reason of the transfer and instead transfers from the Seller to the Buyer Reg 4(2) Employees will have the same rights Reg 4(3) Applies to all employees employed by the Seller immediately before the transfer

Can Employee bring an unfair dismissal claim? 1 year’s continuous employment? Can employee prove they have been dismissed; actual or constructive dismissal?

Was the dismissal because of the transfer? Reg 7(1)(a) Employees will be deemed to have been automatically unfairly dismissed by reason of a transfer Question of fact for the employment tribunal to determine whether a dismissal is by reason of the transfer itself A dismissal following pre-transfer collusion between the transferor and the transferee with regard to dismissals is likely to be regarded as a dismissal by reason of the transfer itself

Was the dismissal before the transfer? Yes

Was the dismissal for a reason connected with the transfer? Reg 7(1)(b) Employees will be deemed to have been automatically unfairly dismissed for a reason connected with the transfer unless employer can show an ETO reason ETO reason: - Economic reason relating to the profitability or market performance of the transferee’s business - Technical reason relating to the nature of equipment or production process which the transferee operates - Organisational reason relating to the management or organisational structure of the transferee’s business Hynd v Armstrong a transferor employer cannot rely on the transferee’s reason in order to establish an ETO Reg 7(2) & (3) If there is an ETO reason there is no automatic unfair dismissal and instead dismissal will be regarded as redundancy or some other substantial reason to justify dismissal ETO reason Exists

No

Was dismissal handled fairly under 98(4) ERA 1996 Reg 7(1)(a) Dismissal automatically unfair and Reg 4(3) employee can bring a claim for unfair dismissal against the TRANSFEREE

- Capability/qualifications of employee for doing work of kind he was employed to do - Conduct of employee - Employee was redundant - Employee could not continue to work in position held without contravening some statutory enactment - Some other substantial reason justifying dismissal of an employee holding position which employee held

No

Was the dismissal after the transfer?

Dismissal before transfer? Yes

Reg 7(1)(a) Dismissal automatically unfair and Reg 4(3) employee can bring a claim for unfair dismissal against the TRANSFEREE

Claims for redundancy (2 years’ continuous employment) Claims for Wrongful Dismissal

Claim against transferor

Dismissal after transfer

Claim against transferee

Claims for redundancy (2 years’ continuous employment) Claims for Wrongful Dismissal

Reg 13(2) Long before the relevant transfer the transferor should inform the employee representatives of the fact that the transfer is to take place, the date or the proposed date of the transfer and the reasons for it