the Transfer of Undertakings (Protection of Employment) Regulations 2006 now applies to the provision of changes in cases where a customer is engaged a contractor to do work on his behalf is either such an assignment or reassignment, to the work "In-House".
There are two exceptions. It is not a service change, if the contract is wholly or mainly for the supply of goods for customers to use and the activities carried out in conjunction with a specific event or task of short duration.
The effect of TUPE 2006 on the provision of services change, therefore, that workers have the right to transfer to the same conditions as they are with their original employer on a transfer of the service as a result of changes in procurement or contracting in.
The absurdity of TUPE 2006 is that many companies want to keep a stable workforce and their employees when they cease to provide services for a specific client. There are some obvious precautions and measures that can be used by "customers" and their contractors to avoid TUPE 2006, with an effect.
The following solutions are largely untested, because the reality is that TUPE 2006 will not fully into the Courts.
Promotion of objections by departing employees
The first method to prevent the provision of services to change provisions to encourage the use of the objection of potentially transferring employees. Some companies will set out concrete measures to provide incentives for their employees to stay, even though they technically should offer customers a new service provider. In some cases, customers especially valuable employees by encouraging them to object to the transfer pursuant to Regulation 4 (7). Once the latter is, of course, the client must re-negotiate new contractual arrangements with them.
Rate protection, a service not as an organized group of employees
Secondly, it is also the company in order to ensure that no employee or group of employees for a particular customer (whether exclusively or not) in the provision of services. After all that TUPE 2006 will not apply to the provision of services, if the employee is not a single economic grouping. The DTI guidance states that the team should be "essentially for the implementation of activities to be transferred (if they do not have to work exclusively on these activities)." End users are demanding the conditions in their contracts for the provision of services. These contracts may also include a requirement that no staff in that particular activity should be more than a certain percentage of their time on this activity, and appropriate guarantees and indemnities from the supplier. Customers can also try the new contracts in the specific employees to do and do not want to carry out the work on their behalf, even if new contractors may factor into the price the costs of dealing with an 'undesirable' transferring employees.
This is a much more sophisticated model as input into a series of ad hoc contracts, because the court is likely caused by a contractual device from which the ad-hoc contacts are, in fact, with the same employees in the same service for a special client -.
Such a quota system very well problems in terms of quality of service, especially if the client relationship is important for providing a good service. This is because by increasing the number of or frequent switching between providers in a decline. The advantages of doing this would be balanced against disadvantages such as loss of continuity and the adverse impact on the customer-supplier relationship. This is a difficult assessment depending on the type of service.
Secondment Route
The third method is to create a situation of secondment. Similar to the method of argument is about the refusal of employees to transfer the employee to remain in the formal employment of the original client - though not continuously. Moreover, the workers, the new contractor. After a further secondment to avoid transfers by Regulation 4 (1) that states that employees under TUPE 2006, when her contract of employment "by the transfer otherwise. "" Of course there are no cancellation due to a transfer to an employee is seconded. This was accepted by the NHS in Private Finance Initiative (PFI), so that NHS staff in the NHS benefit from a pension during the period of secondment to a private contractor.
Ian Mann - Employment Barrister http://www.employment-barrister-uk.com http://www.13kbw.co.uk 13 King's Bench Walk Ian Mann was sent to the Bar in 2000. He practices in employment disputes, which both employers and employees. His employment practice covers the full spectrum of Employment Tribunal, High Court and the Appellate Body of work and covers all aspects of employment, especially discrimination.
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