EMP8
Transfer of Undertakings (Protection of Employment) Regulations 2006 - TUPE
PROCEDURE PLAN
DISMISSAL BEFORE A RELEVANT TRANSFER
EXAM TIP:
- Question may NOT state if it is a TUPE or not, up to you to decide
- OR question can say ‘Assume it is a relevant transfer, work out…
1. Was there a Relevant Transfer?
Regulation 3 - Two types of relevant transfer:
o “Business transfers” (reg 3(1)(a)).
o “Service provision changes” (reg 3(1)(b)).
“Business transfers”
Two-limb test: (Reg 3(1)(a))
a) Is there an economic entity? – Question of fact
b) Has that entity transferred? – Spijkers
Is there a Transfer? à The identity of the employer must change
/ Heart of transfer à The Regulations do not apply to transfers by share takeover because the same company continues to
be the employer
Is there an à An Economic Entity is defined by Reg 3(2):
Economic Entity? o ‘An organised grouping of resources which has the objective of pursuing an economic activity,
whether or not that activity is central or ancillary’.
à Cheesman v R Brewer Contracts [2001]
(a) There needs to be an economic entity which is
Stable and discrete and
Stable in this context means “merely an ongoing economic enterprise”.
Whose activity is not limited to performing one specific works contract.
An organised grouping of wage earners and assets enabling the exercise of an
economic activity.
(b) The entity must :
Be sufficiently structured and autonomous but
Will not necessarily have significant assets.
(c) In certain sectors the entity can essentially be based on manpower.
(d) The identity of the entity emerges from factors such as:
Its workforce
Management staff
The way work is organised and
Operating methods.
à Can be part of an undertaking e.g. a division of an existing business
Has the economic Spijkers v Gebroeders Benedik Abattoir CV [1986]
entity “retained its
identity” after the 7 factors that tribunals should consider when determining whether an entity retains its identity. The key is
transfer? whether its operations are continued or resumed after the transfer.
(a) the type of undertaking or business;
(b) the transfer or otherwise of tangible assets such as building, equipment and stocks;
(c) the value of intangible assets at the date of transfer (eg goodwill);
(d) whether the majority of the staff (in terms of numbers or skills) are being taken over by the
new employer;
(e) the transfer or otherwise of the circle of customers;
(f) the degree of similarity between activities before and after the transfer;
Transfer of Undertakings (Protection of Employment) Regulations 2006 - TUPE
PROCEDURE PLAN
DISMISSAL BEFORE A RELEVANT TRANSFER
EXAM TIP:
- Question may NOT state if it is a TUPE or not, up to you to decide
- OR question can say ‘Assume it is a relevant transfer, work out…
1. Was there a Relevant Transfer?
Regulation 3 - Two types of relevant transfer:
o “Business transfers” (reg 3(1)(a)).
o “Service provision changes” (reg 3(1)(b)).
“Business transfers”
Two-limb test: (Reg 3(1)(a))
a) Is there an economic entity? – Question of fact
b) Has that entity transferred? – Spijkers
Is there a Transfer? à The identity of the employer must change
/ Heart of transfer à The Regulations do not apply to transfers by share takeover because the same company continues to
be the employer
Is there an à An Economic Entity is defined by Reg 3(2):
Economic Entity? o ‘An organised grouping of resources which has the objective of pursuing an economic activity,
whether or not that activity is central or ancillary’.
à Cheesman v R Brewer Contracts [2001]
(a) There needs to be an economic entity which is
Stable and discrete and
Stable in this context means “merely an ongoing economic enterprise”.
Whose activity is not limited to performing one specific works contract.
An organised grouping of wage earners and assets enabling the exercise of an
economic activity.
(b) The entity must :
Be sufficiently structured and autonomous but
Will not necessarily have significant assets.
(c) In certain sectors the entity can essentially be based on manpower.
(d) The identity of the entity emerges from factors such as:
Its workforce
Management staff
The way work is organised and
Operating methods.
à Can be part of an undertaking e.g. a division of an existing business
Has the economic Spijkers v Gebroeders Benedik Abattoir CV [1986]
entity “retained its
identity” after the 7 factors that tribunals should consider when determining whether an entity retains its identity. The key is
transfer? whether its operations are continued or resumed after the transfer.
(a) the type of undertaking or business;
(b) the transfer or otherwise of tangible assets such as building, equipment and stocks;
(c) the value of intangible assets at the date of transfer (eg goodwill);
(d) whether the majority of the staff (in terms of numbers or skills) are being taken over by the
new employer;
(e) the transfer or otherwise of the circle of customers;
(f) the degree of similarity between activities before and after the transfer;
