TUPE: Law and Practice

Citation

Jefferson, M. (2007), "TUPE: Law and Practice", Managerial Law, Vol. 49 No. 4, pp. 185-186. https://doi.org/10.1108/03090550710836571

Upex and Ryley is a legal practitioner work on the Transfer of Undertakings (Protection of Employment) Regulations 2006 SI 2006/246 (“TUPE”). The 2006 Regulations are based on the 1981 Regulations of the name SI 1981/1794, the decisions of the European Court of Justice on the Acquired Rights Directive 1977 77/187/EEC, now amended and consolidated into the Directive 2001/23/EC on the “safeguarding of employees” rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses', and a special UK approach to outsourcing and insourcing. Even in this single sentence one can see that the law is complicated as to its sources and when one adds that pensions on a transfer are dealt with largely independently of TUPE and that there is a Cabinet Office Statement of Practice – Staff Transfers in the Public Sector, 2000, which can be seen as giving rise to a two‐tier workforce with those in the public sector being protected more than those in the private sector, there is great room for confusion. This book well explains how the 2006 Regulations came about, the use of the various options the 2001 Directive gave to the UK government particularly in respect of insolvency when the government is seeking to promote the rescue culture, and the protection for UK employees when there is a “service provision change”, protection which goes beyond the EC Directive. For example, in the book there is extended treatment of dismissals and attempted variations of contract in connection with the transfer, the effect of the transfer on contractual and non‐contractual matters (such as sex discrimination claims against the transferors), the right to opt out of the transfer (including the reversal of Rossiter vs Pendragon Plc (2002) ICR 1063 (CA)), the new obligation in respect of employee liability information, trade union recognition, and the consultation rights (including the UK's “special circumstances” defence). It is, however, unclear why there are also quite lengthy discussions of the definition of “employee” in Anglo‐welsh law and of express and implied terms in the contract of employment, and the outline of the upper age limit for unfair dismissals claims has already been superseded by the Employment Equality (Age) Regulations 2006 SI 2006/1031, in force 1 October 2006.

Now is a good time to publish: the Regulations came into force in April 2006. In comparison with the flood of articles from, for example, firms of solicitors and chambers of barristers there is a good deal to praise in the book. It does not simply relate the law but provides examples of how the law may be applied and there are substantial appendices (including the then Department of Trade & Industry's Guide to the 2006 TUPE Regulations for Employees, Employers and Representatives) and precedents, a checklist relating to information and consultation and draft letters: indeed, this material forms more than half of the text of the book. It is obviously handy to have such material in one place. However, legal practitioners and human resources managers may wish to have John McMullen's Business Transfers and Employee Rights, a looseleaf encyclopaedia regularly updated, on their shelves for the latest cases and for authoritative discussion, while the work of Malcolm Sargeant and again John McMullen in periodicals as diverse as the Solicitors' Journal and the Industrial Law Journal provide much‐needed commentary on the development of the law. In this sense the work of Upex and Ryley is a helpful review of new law intended for busy lawyers and managers but it will not be kept up‐to‐date as a looseleaf encyclopaedia can be and it does not fully deal with, though it does raise, some of the more abstruse contentious issues such as the application of the Regulations to cross‐border transfers and off‐shoring. The reviewer was intrigued by the comment on p. 46 that: “One is tempted to wonder whether any useful purpose has been served by attempting to codify, in effect, the case‐law of the ECJ and whether the state of the law has been improved by the process”. This remark is not followed up but, in the view of the reviewer, if a busy lawyer or manager is saved time (one would be loath to recommend to such a person the publications of Gavin Barrett in the Common Market Law Review on the jurisprudence of the ECJ on acquired rights), then this codification like others has served its purpose. In this regard the reviewer would have expected an annotated bibliography to guide the reader towards deeper argumentation but, though there are footnotes to academic comments, in fact there was no bibliography at all, a defect it is to be hoped will be remedied in the next edition.

There are some very minor errors e.g. in the table of cases the citations to Alamo and Allen need correction. Mackenna is misspelt on p. 1, as are Gebaeudereinigung in fn. 35 on p. 20 and in the text on p. 24 and Arbejdsledere on p. 80. The name of a judge is variously given as Millet and Millett across three pages on pp. 167‐9. There is a small amount of repetition, which should be excised, across three footnotes on pp. 34‐5 in relation to Kenny.

In summary this book is a helpful guide to law and HR professionals and while it does not solve all problems of TUPE (some of which may be considered abstruse or arcane), it goes a long way to explain the law, how that law came about, and how the cases have construed the legislation. Lawyers involved in TUPE are often called “anoraks” (also known as “nerds”) by colleagues but Upex and Ryley provide a Crombie to cloak the “anorak”!