This procedure is now contrary to the 2006 regula-
tions and could result in an unfair dismissal unless the
dismissals are for economic, technical or organisational
reasons under reg 7(1)(b). This could occur, for ex-
ample, where on transfer it is a condition of the contract
that a new contractor reduces the contract price by
reducing staff and this is done: what is the reason for the
dismissals of the redundant staff? Is it merely a cost sav-
ing relating to the conduct of the business which would
have happened anyway whether or not there had been a
transfer or is it just a way to reduce the cost of running
the contract to those who might wish to carry it on? If
the former, the dismissals would not be unfair under reg
7(1)(b). If the other motive is behind the dismissals,
they may be unfair.
Regulation 3(6) provides that a transfer may be effected
by a series of two or more transactions. Thus in Astleyv
Celtec Ltd(2006) the House of Lords ruled that for the
purposes of determining their continuous service for
redundancy a number of civil servants whose depart-
ment was privatised in 1990 were to be deemed to have
been transferred to the new undertaking Newtec (now
known as Celtec Ltd) at that time, even though in fact
they were initially on secondment to Newtec and did not
resign from the Civil Service until 1993.
Variation of contracts of employment
Regulation 4 of TUPE 2006 allows employees to agree to
variations in their terms of employment. However, this
is only where the variation is not connected with the
transfer or is for an economic, technical or organisational
reason connected with the transfer entailing changes in
the workforce.
Obviously, employees could agree to changes in their
terms of employment not made in the above context but
such agreements would not bind them. It is also worth
noting that, once again, these variations cannot be effect-
ively made merely to make the business being transferred
more attractive to the buyer, and that the consent of the
workers must be freely given even where there are eco-
nomic, technical or organisational reasons.
Changes in the terms of employees’ contracts are allowed
where the old employer’s business is insolvent (see below).
Further, employees can enforce a variation if they wish
to do so (Powerv Regent Security Services(2007)).
Workers abroad
TUPE 1981 excluded workers abroad from its provisions.
TUPE 2006 has no such provision. Its extra-territorial
application was confirmed in Holis Metal Industriesv
GMB(2007), which concerned the transfer of part of a
business to an employer in Israel.
Giving information to the new employer
Regulations 11 and 12 apply, the former imposing a new
obligation on the transferor. Where a transfer takes
place after 19 April 2006, the transferor must give infor-
mation to the new operator in written or readily accessible
form in regard to the identities of those employees who
are transferring and their employment rights and liabil-
ities. This information must be provided at least two weeks
before the transfer is completed. If special circumstances
make this impractical the information must be supplied
as soon as reasonably practicable before the transfer. This
is to ensure that the transferee is well placed to honour
obligations towards the transferred employees.
Specifically the information to be supplied is:
■the identities and ages of all employees;
■the statement of terms and conditions of employees;
■details of any disciplinary proceedings against or
grievances issued by any employee during the last two
years;
■details of any court or tribunal cases that any employee
has brought in the last two years, and of any which
the transferor has reasonable grounds to believe may
be brought by any employee;
■details of any collective agreement which will have effect
after the transfer.
Where this information is not supplied, the transferee
will be able to bring a tribunal claim against the transferor
for such compensation as may be just and equitable
in the circumstances and having regard to loss suffered
by the transferee because of the failure to supply the
information required. There is a minimum award of
£500 for every employee in respect of whom the duty to
supply the information was not properly carried out. A
tribunal may, however, think it is just and equitable to
award less (reg 12).
Duty to inform and consult representatives
Regulation 13 applies. Long enough before a relevant
transfer to allow appropriate representatives to be con-
sulted by employees the employer must inform those
representatives of:
■the fact that a transfer is to take place;
■the legal, economic and social implications of it for
employees affected;
■the measures he or she will take in relation to any
affected employee or if no measures will be taken;Part 4Business resources