the Transfer of Undertakings (Protection of Employment) Regulations 2006 revoked in 1981 Regulations in their entirety. The most important change under the new scheme is to expand the definition of the relevant transfer so that both standard-transfers and the provision of qualified changes are of TUPE 2006. The position in relation to the transfer standard is the same as under the provisions of the 1981st But now TUPE 2006 codifies some of the principles of standard transfers, which is characterized by the law. The government of the rationale for the implementation TUPE 2006 was that there was a "level playing field" by removing uncertainty as to whether the rules on outsourcing or insourcing of services or changes to the service provider. The certainty where offerings are made for contracts on a true commercial basis, without the need for margins of built-in to cover the uncertainty.
Services Change
A service of change within the framework of the 2006 TUPE regulations means that workers are entitled to transfer to the same conditions as they are with their original employer. A service change occurs when a customer is engaged a contractor to do work on his behalf is either:
• reallocation of such a contract, or
• to work "in house".
There are two exceptions. It is not a service change if:
• the contract wholly or mainly for the supply of goods for customers to use or
• the activities carried out in conjunction with a specific event or task of short duration.
Under TUPE 1981 regulations provide changes could be relevant if it also transfers fell within the definition of "transfer. Süzen In Ayse v Gebauderreinninging GMBH hospital services, the ECJ found that a transmission in a labor-intensive sector, the regulations would only apply if the activity concerned for at least a continuity of an economic entity. This includes the transfer of the majority of the workforce in terms of capabilities or numbers.
It is clear that some cases decided under rules adopted in 1981 would be different under TUPE the 2006th It may not have been a relevant 1981 in the framework of the regulations, if a replacement contractor has no employees or other assets from the old and contractors using the services in a different way, to the extent that had no economic unit. Work, if a transfer had taken place mainly in the supply sector was erratic and expensive. TUPE 2006 is therefore welcome legal clarity.
Organized group of employees
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)." Then an example of a courier service operated by different couriers on an ad hoc basis (which is not) as opposed to a service provided by a team of employees recognized (as).
Also, there will be a service change, if it is an organized group of employees, but they have no significant purpose of carrying out activities for a specific client. For example, an IT helpdesk phone have a team of staff for the provision of certain services, but also for 3 or 4 customers rather than one. But there is no reference to the percentage of time the employee, over what time that is necessary for the "main purpose" threshold. This should be a fertile field of litigation before the courts.
Care services for identity changes
TUPE 2006, shows that to make it relevant for a transfer of a business need to transfer their identity, but this is not a specific requirement TUPE 2006 for the supply changes. One question that remains unanswered as to whether a service change can occur even if the service does not disclose his identity after the transfer, since the incoming service provider changes fundamentally the way in which they service.
Although TUPE 2006 provides welcome clarity, there is also quite clear that definitional problems, the courts will be busy in the future. Because the case law which TUPE 1981 for up to a certain extent to be useful.
Ian Mann - Employment http://www.employment-barrister-uk.com Barrister 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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