Can we avoid the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”)

One sizeable logistics company ended up with a £100k bill last year after falling foul of TUPE regulations. There has been a bit in the press recently that would seemed to imply that the regulations might be changing so we thought this worthy of a little clarity.

Indeed, the Coalition Government has indicated that it will bring an end to the ‘gold plating’ of EU rules, where regulations bringing in European law into UK law go further than required.

Thanks to our partners at JMW Solicitors (www.jmw.co.uk)for a bit of case law and precedent

In January 2011, the European Court of Justice (“ECJ”), in the case of CLECE SA -v- Maria Socorro Martin Valor and Ayuntamiento de Cobisa, said that a mere change of service provider is not a transfer of an undertaking.

In this case, a Spanish local authority contracted out the cleaning of its schools and premises. The local authority terminated the contract and brought the service back in-house. However, when it did so, it did not employ the contractor’s staff and instead hired new employees to do the work. Assets did not transfer from the outgoing contractor to the local authority and as no staff were taken on, the ECJ decided that there had not been a transfer of an undertaking.

This case reafirms the position that where there has been a transfer of a service provision change, the mere change of a provider cannot, without the transfer of assets or the taking of employees, amount to a transfer.

In the first instance, this decision may appear to be an invitation to employers to avoid the TUPE Regulations when outsourcing, where there is no transfer of assets, by simply refusing to take on the staff. Unfortunately, had the case arisen in the UK, TUPE would have applied because it goes further than European law so that a mere change in service provider can in itself trigger a transfer of an undertaking under UK law.

So there you have it

The service provision change sections of TUPE, which do not feature in European law, are often quoted as an example of the so called 'gold plating'. This case is likely to be utilised by campaigners who have been trying to persuade the government to reform TUPE and simplify employment law regulations more generally.

For the moment however, nothing has changed but you can always lobby!

Watch this space for more info

If you want to talk to an expert please contact Jessica @ JMW directly .. jessica.mistry@jmw.co.uk

Royal Wedding Holiday Headache for Employers

Background ..

Having talked with lots in the business about their approach to the extra Bank Holiday, it is surprising how many different strategies are being adopted, and indeed how many companies have yet to make a decision. So with some help from our partners at JMW - we hope the following may help!

Bank holidays are holidays under the Banking and Financial Dealings Act 1971, when banks and many businesses are closed for the day. Public holidays are holidays which have been observed through custom and practice and include bank holidays. In England and Wales, there are currently six permanent bank holidays. Christmas day and Good Friday are public holidays.

The law allows the dates of bank holidays to be changed or other holidays to be declared, for example, to celebrate special occasions. It has been announced that there will be a special public holiday on 29 April 2011 to celebrate the Royal Wedding and another on 5 June 2012 to celebrate the Queen’s Diamond Jubilee.

Although many employers will be happy to give staff the extra day off with pay, the current economic climate may mean that this option may not be affordable to all. Also, in many industries or occupations (e.g. travel, retail, emergency services), working on a public holiday is a commercial or operational necessity.

Am I obliged to let my staff take the 29 April 2011 as a paid day off?

Workers do not have an automatic statutory right to time off (paid or otherwise) on any public holidays. Also, if your staff work on a public holiday their pay for the day will be dependent upon their contract of employment as there is no statutory right to overtime or time off in lieu.

Whether your staff have a right to take a public holiday as leave will be regulated by the terms of their contract of employment:
• If the contract entitles them to take, for example, 20 days holiday plus public holidays, it is likely that the 29 April 2011 will qualify as an extra day’s paid leave.
• If the contract specifically lists the public holidays that thee are entitled to take, they are unlikely to be entitled to take the 29 April 2011 off and whether they can take the time off will be at the discretion of the employer.
• Some contracts of employment may specify that they are entitled to take, for example, 28 days leave inclusive of all public holidays, so there will be no extra entitlement.

Where there is no consistent contractual wording within your organisation which could result in some staff being entitled to the extra day and some staff who are not entitled to it, it is advisable to allow all staff an extra day off in order to maintain good employment relations. Employers should ensure that there is consistency in treatment across their entire workforce.

Can I ask staff to take the extra time off from their normal holiday entitlement?

If the contract of employment does not entitle your staff to take the 29 April 2011 as an extra paid day off, you may require them to take the extra day off from their normal holiday entitlement. You should notify your staff that they must take a day’s holiday from their entitlement on that particular day. You should provide notice in writing as soon as possible and you must give them at least two clear days notice of your requirement before the public holiday.

It is important to bear in mind that if you do grant an additional paid day’s holiday for the Royal Wedding in 2011, you will be setting a precedent which may imply that you will grant an additional paid day’s holiday for the Queen’s Diamond Jubilee in 2012 as well.

For further info or support, please contact jessica.mistry@jmw.co.uk