10 TUPE (Transfer of Undertaking) Claims in the WRC (Workplace Relations Commission)

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tupe regulations

The law surrounding transfer of undertakings is confusing and difficult. I have written a number of articles already, which you can access here:

Today I look at the claims that can result if things are handled badly in a transfer of undertaking situation.

  1. My current/new/previous employer did not ensure that my terms and conditions transferred from my previous employer.

Regulation 4(1) of the European Communities (Transfer of Undertakings) Regulations 2003 provides that the previous employer’s rights and obligations arising from a contract of employment existing on the date of transfer shall transfer to the new employer.

  1. My previous employer did not ensure that my terms and conditions transferred to the new employer. Regulation 4(1) of the European Communities (Transfer of Undertakings) Regulations 2003 covers this.
  2. My current/new employer did not observe the terms and conditions transferred from my previous employer
    Following the transfer of a business, the new employer shall continue to observe the same terms and conditions agreed in any collective agreement on the same terms applicable to the previous employer, as set out in Regulation 4(2) of the European Communities (Transfer of Undertakings) Regulations 2003.

    1. I was dismissed by my previous employer on the grounds of the transfer of business/undertaking

    Regulation 5(1) of the European Communities (Transfer of Undertakings) Regulations 2003 provides that the transfer of a business does not in itself constitute grounds for dismissal.

    Regulation 5(3) provides that if a contract of employment is terminated because the transfer involves a change of working conditions to the detriment of the employee then the employer is regarded as having been responsible for the termination of the contract of employment.

    1. I was dismissed by my new employer (the transferee) on the grounds of the transfer.

    Regulation 5(1) and 5(3) are the relevant regulations.

    1. Employee representation was not preserved or arranged by the current/new employer following the transfer of the business

    Regulation 7 of the European Communities (Transfer of Undertaking) Regulations 2003 provides that:-

    • Where a business preserves its autonomy after a transfer the status and functions of employee representatives should remain the same by the new employer.
    • Where a business does not preserve its autonomy following transfer the new employer must arrange for the employees transferred who were previously represented to choose a person or persons to represent them during the period necessary for reappointment of the representatives or the reconstitution of their representation.
    1. The new/current employer did not inform employee representatives of certain details of the transfer

    Regulation 8 of the European Communities (Transfer of Undertakings) Regulations 2003 provides that the employer must inform their employee representatives affected by a transfer of:-

    • The date or proposed ate of transfer
    • The reasons for the transfer
    • The legal, economic and social implications of the transfer
    • Any measures envisaged in relation to the employees.
    • Details of the number of agency workers temporarily engaged
    • The parts / areas of the business in which those agency workers will be working
    • The type of work the agency workers are engaged to do

    The employer must give this information to the employee representatives not later than 30 days before the transfer is carried out or in any good time before the employees are directly affected by the transfer

    1. The previous employer did not inform employee representatives of certain details of the transfer.

    See Regulation 8.

    1. The new employer did not consult in relation to the transfer.

    Regulation 8(4) of the European Communities (Transfer of Undertakings) Regulations 2003 provides that the employer must consult employee representatives where reasonably practicable not later than 30 days before transfer is carried out.

    1. The previous employer did not consult in relation to the transfer.

    Regulation 8(4) of the European Communities (Transfer of Undertakings) Regulations 2003 is the relevant one.