L'UNION INTERNATIONALE DES AVOCATS TRADE UNIONS/WORKS COUNCILS AND TRANSFERS OF UNDERTAKING SOME UK PERSPECTIVES

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1 L'UNION INTERNATIONALE DES AVOCATS TRADE UNIONS/WORKS COUNCILS AND TRANSFERS OF UNDERTAKING SOME UK PERSPECTIVES This short paper is in two parts. The first part provides a brief description of the consultation rules which do or may be relevant to the transfer of an undertaking. The second part deals with particular issues under the Transfer of Undertakings (Protection of Employment) Regulations 2006, as Amended ( TUPE ). These are the regulations which enact in the UK the rules contained in the EU s Acquired Rights Directive ( ARD ). Consultation generally 1. The UK has, in accordance with its EU obligations, legislated as follows:- Sections 188 to 198 TULR(C)A These provisions deal with the duty of an employer to consult representatives of employees where mass redundancies are proposed. This has been covered in detail by Mark Watson; TUPE 2006, which enacts (and indeed embellishes or gold-plates ) the ARD; (iii) the Transnational Information and Consultation, etc. Regulations 1999 ( TICER ), which are the domestic implementation of [what is now] Directive 2009/39/EC; and (iv) the Information and Consultation of Employees Regulations 2004 ( ICER ) which are the domestic implementation of Council Directive 2002/14/EC. Each of these may have some relevance to transfers of undertakings, although it is TUPE which is of central relevance. 2. TICER provides for the establishment of what are generally called European Works Councils ( EWCs ). They apply to multinational companies which employ at least 1,000 employees within member states, operate in at least two members states and have at least 100 employees in at least two member states. There are various methods by which they can be created, and they exist for the purposes of consultation over transnational issues. 3. ICER provides for the establishment of domestic works councils. Again, they can be formed in various circumstances where the employer employees at least 50 people. 4. Many transfers of undertakings give rise to redundancies. Mark Watson has covered the redundancy rules in his paper/talk. The point to make here is that, for reasons connected with the wording of TUPE and English case law, many redundancies are carried out by the transferee after the transfer has taken place. 5. The English courts had interpreted TUPE 1981 (the original enactment of the ARD) as applying to many commercial transactions beyond ordinary business sales [they do not apply to share sales, but may apply to any subsequent reorganisation by the buyer], and this was formalised in TUPE 2006 which introduced provisions dealing with contracting out and contracting in; i.e. service provision changes. The Government recently consulted about the abolition of the SPC rules but, in the end, decided not to abolish them. 1 FARDM1/GWR/13/

2 6. So, if a company plans something which will amount to a transfer (and, in the UK, transfers include service provision changes), namely:- the sale of a business or part of a business; contracting out certain functions of the business (e.g. cleaning or catering); second generation contracting out; contracting back in then it is likely to face information and consultation obligations under TUPE; on the transfer of the contracts of employment of those who work in the business/function will transfer and the rules which give protection against TUPE-related dismissals will apply. 7. At a preliminary stage, if:- the company is a multinational and there will be something amounting to a transfer across national boundaries, it may be under an obligation to inform and consult the EWC under TICER; and any employer contemplating a course of action which could lead to a transfer of undertaking may be under an obligation to discuss that with its works council, if it has one, under ICER or otherwise. But a moment will come when TUPE applies, and at that point it is the TUPE rules which are relevant. 8. TUPE requires employers to notify appropriate representatives long enough before a relevant transfer of:- the fact a transfer is to take place, the proposed date of the transfer and the reasons for it; the legal, economic and social implications of the transfer for affected employees; any measures the employer envisages he will take in connection with the transfer; information about the transferee s intentions. Both proposed transferor and proposed transferee must exchange relevant information. 9. As under the redundancy rules, information/consultation is with trade union representatives where a union is recognised, or with elected employee representatives otherwise save in a very small business (10 employees or less) where the employees can be consulted directly. 10. There is no set period for consultation, but the consultation should take place with a view to seeking the agreement of the representatives to any intended measures. The duty to consult only arises where an employer envisages taking measures. 11. A failure to comply with these obligations exposes the parties to liability to pay compensation of up to 13 weeks uncapped pay to affected employees. 2 FARDM1/GWR/13/

3 12. A transferor must provide the transferee with certain information about the transferring employees [called employee liability information ] not less than 28 days before the relevant transfer takes place. If the transferor fails to provide this information, the transferee has a remedy. 13. Where there is a TUPE transfer, the contracts of employment of employees employed by the transferor and assigned to the undertaking automatically transfer to the transferee on their existing terms, with the exception of old age, invalidity and survivor s benefits under occupational pension schemes. The transferee effectively steps into the transferor s shoes. All the transferor s rights, powers, duties and liabilities under the employment contracts passed to the transferee, and any acts or omissions of the transferor before the transfer are treated as if they had been done by the transferee. Employees who object to the transfer do not become employees of the transferee. Their contracts of employment terminate automatically on the transfer date. There is no dismissal. 14. TUPE provides additional protection against dismissal; i.e. over and above general unfair dismissal law. Dismissals by reason of the transfer itself are automatically unfair. A transferor cannot rely on the transferee s reasons for dismissal, which is one reason why many dismissals are carried out after rather than before a transfer although, in practice, some employees may leave their employment just before the transfer takes effect; they receive redundancy payments and sign settlement agreements. Some problem areas 15. I have been asked to deal briefly with some of the issues which arise in the UK under TUPE. The Government hoped that changes made to TUPE by the Collective Redundancies and Transfers of Undertakings (Protection of Employment) (Amendment) Regulations 2014 might help. They may help in some ways but some problem areas remain. 16. I want to touch briefly on:- changing (often to harmonise) terms and conditions after the transfer (including relocations); the impact of collective agreements after a transfer; and TUPE and insolvency, including pre-pack administrations. Changing terms and conditions 17. Because the ARD was intended to preserve terms and conditions on a transfer, the courts have made it difficult for employers to make (harmonising) changes in the aftermath of a transfer. 18. The key European case is Daddy s Dance Hall, in which the ECJ said:- an employee cannot waive his ARD rights even if, overall, he is not placed in a worse position [i.e. the employee can pick and choose]. Any changes will be void; 3 FARDM1/GWR/13/

4 an agreement with the new employer to alter terms is not precluded where the alteration is permitted by national law in cases other than the transfer of undertakings; 19. in the UK, the courts interpreted the original TUPE rules as impacting not only on changes caused by the TUPE transfer, but also on any changes connected with the transfer. This was reinforced by TUPE In effect, there was a presumption that the reasons were transfer-connected. To rebut the presumption, the employer had to point to some intervening event or other reason. This was often difficult, despite the passage of time. 21. There are two elements to establishing an ETO reason:- it has to do with the day-to-day running of the business; and there have to be changes in numbers and functions of employee; There is a further provision in TUPE [Reg. 4(9)] which enables employees to claim constructive unfair dismissal where there are substantial changes to their working conditions to their material detriment. This is an easier test for employees to satisfy than constructive dismissal. In particular, it had and may still have an impact on relocations. 22. TUPE 2006 was amended earlier this year and the restrictions on amending terms have been eased. The changes will only be void where the reason was the transfer itself. Variations will also be allowed in three situations, even if the reason for the variation is the TUPE transfer:- where the reason is an ETO reason, and both employer and employee agree to the variation; where the variation is permitted by the employment contract (e.g. a flexibility clause) but Reg. 4(9) remains, so there is still a potential difficulty about relocations; where the variation is collectively agreed, and the variation takes effect at least a year after the transfer date and overall the contract is no less favourable. So English law now has some flexibility, and perhaps could be said to have taken note of the second limb of the Daddy s Dance Hall decision. Collective Agreements 23. In a wonderful twist because, under English law, collective agreements are not legally binding, Reg. 5 TUPE provides that the collective agreements which apply to transferring employees are treated as if they were with the transferee employer. This means those parts of the collective agreement which are not transferred as part of the employees contracts of employment policies, facilities for union representatives, disputes procedures, etc. 24. What happens if pay is set by external collective bargaining arrangements in which the transferee employer can play no part? For example, where a local authority contracts out work to a private sector employer. Should the transferee be bound by pay 4 FARDM1/GWR/13/

5 increases negotiated in the NJC? There was something of a difference between the UK (adopting the dynamic approach) and other parts of Europe. 25. In Parkwood Leisure v- Alemo-Herron, the CJEU recently held that the dynamic approach would contravene European law where it imposed future collective bargaining decisions on an employer, post-transfer, where that employer was not part of the negotiating process and could have no influence over it. Interestingly, the CJEU said that the aim of the ARD was not solely to safeguard the interests of employees, but also to ensure a fair balance between the interests of those employees on the one hand and those of the transferee on the other. The dynamic approach was at odds with the freedom to conduct a business, which was itself a key principle of European law. Pre-Pack Administrations 26. Administration is a collective insolvency procedure designed to rescue the company or to achieve a better realisation of its assets 27. Where the terms of a sale of assets or a business is agreed in advance of the appointment of administrators, this is known as a 'pre-packaged' administration or a 'pre-pack'. 28. Pre-packs can be beneficial because:- (iii) they minimise the impact of the insolvency on the business in question; customers and suppliers only aware of the insolvency when notified by the new owner, who is able to give comfort as to the future financial stability of the business; and business can be sold as a going concern even where no funding available to trade during an administration, so may save jobs. 29. Pre-packs have attracted criticism because:- there is a lack of transparency and creditor input in to the transaction, and pre-pack sales to directors may allow the directors to 'phoenix' the company by taking back the assets free of the liabilities. 30. TUPE Regulation 4 (automatic transfer of employment contracts) and TUPE Regulation 7 (protection against dismissal) provide protection to employees where businesses are transferred. 31. Regulation 8 disapplies the above regulations where the seller is the subject of 'bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of an insolvency practitioner'. There has been some debate about whether or not administration falls within this definition 32. The position was clarified in 2011 by a Court of Appeal decision in Key2Law (Surrey) LLP v De'Antiquis [2011] EWCA Civ 1567, which confirmed that administrations cannot be 'insolvency proceedings which have been instituted with a view to the liquidation of the assets of the company'. Consequently Regulations 4 and 7 will apply to administrations, where that is a pre-pack or otherwise. 5 FARDM1/GWR/13/

6 33. Regulation 7 provides that a dismissal in a pre-pack will therefore automatically be unfair unless for an economic, technical or organisational (ETO) reason. 34. Crystal Palace a twist on an ETO reason? An administrator of the Club was appointed. A buyer emerged, who wanted to buy the stadium separately owned. During the summer, the Club was running out of money, and the administrator dismissed many staff. While the administrator was wanting to sell the Club, his reason for the dismissals was to reduce costs and allow the Club to continue to trade. The dismissals were "connected with" the transfer, but there was an economic (i.e. ETO) reason. The dismissals were not automatically unfair. G W Richards Farrer & Co. May FARDM1/GWR/13/

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