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.

PREFACE
CONTENTS
TABLES OF AUTHORITIES
GLOSSARY OF TERMS
1. TUPE IN CONTEXT
1.1. TUPE or not TUPE?
1.2. The Original (1977) Directive
1.3. The original TUPE Regulations - 1981
2. EMPLOYMENT RIGHTS UNDER TUPE
2.1. 1998 ARD
2.2. UK’s Pre-Existing Law before TUPE 1981
2.3. The former TUPE Regulations 1981
2.4. ECJ’s Case Law: 1985-2006
2.5. UK judicial guidance, 1987-2006
2.6. Consultation rights conundrum of 1996
2.7. Key TUPE Provisions on Collective rights
2.8. The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999
2.9. Practical Issues post-1999 Consultation Regulations
2.10. Revising the Directive
2.11. Amended Directive – 1998
3. PENSIONS AND TUPE
3.1. The Pensions Exclusion
3.2. The ECJ and Pensions Rights under TUPE
3.3. Whitney v Monster Worldwide Ltd
3.4. Pensions and Public Sector Transfers
3.5. TUPE and the Pensions Act 2004
3.6. TUPE and the Auto-enrolment Regime
4. TUPE AND INSOLVENCY
4.1. The Old Regime
4.2. “Hiving-down”
4.3. The meaning of ETO in insolvency situations
4.4. Insolvency under the 2006 regime & beyond
4.5. Pre-Pack insolvency
4.6. Permitted variations of terms and conditions of employment
4.7. Notification requirements
4.8. Misuse of insolvency proceedings
4.9. Insolvency and TUPE Working Together?
5. SERVICE PROVISION CHANGES AND TUPE
5.1. What is service provision change (aka ‘out-sourcing’)?
5.2. Workforce matters in local authority contracts: Best Value
5.3. Contracting-Out and TUPE
5.4. Ordinary Transfers versus Contracting-Out Transfers
5.5. Practical Issues on TUPE with Contracting-Out
5.6. SPC, TUPE and the Law
5.7. The ‘ETO’ Defences and contracting
5.8. Recent developments on SPC
6. TUPE 2014 and beyond
6.1. TUPE Regulations
6.1.1. Types of Transfer
6.1.2. Effect of Relevant Transfers
6.1.3. Collective Agreements and Trade Union Recognition
6.1.4. Employee Dismissal
6.1.5. Pensions
6.1.6. Employee Liability Information
6.1.7. Election of Employee Representatives
6.1.8. Failure to Inform or Consult
6.1.9. Restriction on Contracting Out
6.2. TUPE and Business Transactions
6.3. Due Diligence
6.4. Negotiation of the Contractual Terms
6.5. Other issues
Further References
Useful Websites
APPENDIX 1: COUNCIL DIRECTIVE 98/50/EC
APPENDIX 2: TUPE REGULATIONS 2006
APPENDIX 3: TUPE AMENDMENT REGULATIONS 2014