Clitheroekid wrote:melonfool wrote:TUPE doesn't apply in sale situations.
That needs to be qualified. Whilst it's true when the company itself is sold, i.e. there's a sale of the shares, TUPE
does apply when it's just the business (i.e. the assets and goodwill) that's sold, as often happens when a company is moving out of a specific area of business and sells off a division.
I know it does, but it was late and it seemed to me in this situation TUPE did not apply so there was no point going down that rabbit hole really.
Yes, selling a division is TUPE. Change of share ownership is not. [usually]
The key difference is if the employer changes.
So, the company could be sold, by change of share ownership, and there be no TUPE, but in two years time, they decide to merge the old co into the co that bought it and dissolve the old co, at which point all employees are now employees of new co and TUPE applies at that point. It can sneak up on you and I think some employers do this later maneuver and ignore TUPE. Key is whose name is on the payslip and the pension scheme.
In terms of changing employment terms - that can be done the same post TUPE as pre TUPE. In that, it's a change of contract and either there is some provision for it to be allowed (in the contract) which is reliable (not all contract terms can be relied upon, some are unreasonable, see the theme of this thread!), or they can consult/gain agreement or they can impose them, or they can dismiss the employee on the current contract and reinstate on a new contract. In those latter two examples the employee may well have a case to bring.
With TUPE, the ONLY difference is that the change cannot be solely as a result of the transfer. So, if the employer said "now you've transferred, we think it's easier if you all change your terms" that would be solely as a result of the transfer and automatically void.
If, however, they said, "since you transferred, the law has changed on x and as a result we need to change your employment contracts", that would not be automatically unfair as it is nothing to do with the transfer.
TUPE itself does not have a time limit and there is no direct definition of what changes are and are not connected to a transfer, though most lawyers agree that the further away from the transfer it is, the harder it would be to show there was a link.
This is slightly muddied by the 2014 Regs which brought in the ability to 'harmonise' employment contracts post TUPE, after 12 months. Harmonise means to bring into line with other terms in the organisation. It does not mean, as my clients keep asking me, wholesale changes to terms you don't much like.
This is also confused by the fact that the original Acquired Rights Directive, from which TUPE stems, does (or did, it may have changed, though it seems not if we were able to bring in a 12m limit in 2014 - I have just checked, the 1977 Directive says: "Member States may limit the period for observing such terms and conditions with the proviso that it shall not be less than one year.") have a provision for a 12m time limit. This is one of the areas TUPE gets a bad name as it is 'better' than the EU legislation.
If TUPE were abandoned, there are some similar right sin the Employment Rights Act 1996, s 218. Not as extensive, but there all the same, buried and unused as TUPE has superseded them (I did need to refer to them once but I can't recall the circumstances).
Mel