- The Employment Minister, Jo Swinson, has announced that simplified TUPE regulations will be unveiled in September, rather than the beginning of July as originally indicated. This may suggest a delay to the original planned implementation date of October 2013.
- The Inner House of the Scottish Court of Session has endorsed recent EAT cases (for example, Eddie Stobart v Moreman) ruling that, where a client transfers its work to a new contractor, there will not be a service provision change under TUPE simply because there are employees who happen to spend most or all of their time working for that client.The requirement for there to be an “organised grouping of employees”, the principal purpose of which is to carry out work for a client, means that there must be an element of conscious organisation by the employer of the employees into a team, which as a whole has as its principal purpose the carrying out of activities for that client. The fact that one employee works 100% for one client does not mean there is the necessary organisation of a team, nor that the team as a whole will be viewed as dedicated to that client (where others on the team work much lower percentages of their time for the client). (Ceva Freight (UK) v Seawell)
- An Employment Tribunal Judge has ruled (at a pre-hearing review) that TUPE does apply to transfer "workers" with a contract personally to perform work, as well as those with a contract of service or apprenticeship – only independent contractors in businesses on their own account are excluded. This is because TUPE defines "employee" as any individual who works for another person, whether under a contract of service or apprenticeship or otherwise. It appears to be the first time a tribunal has considered the point. The obligations to inform and consult and provide employee data should therefore extend to workers, although in our view this would not mean that workers without a contract of service or apprenticeship could claim unfair dismissal by reason of a transfer. (McCririck v Channel 4 and IMG Media)
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.