The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014

CitationSI 2014/16
JurisdictionEngland & Wales

2014No. 16

TERMS AND CONDITIONS OF EMPLOYMENT

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014

8thJanuary2014

10thJanuary2014

31stJanuary2014

The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972( 1) and section 38 of the Employment Relations Act 1999( 2).

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to dismissals or terminations of employment contracts where such dismissals or terminations are effected by an employer for one or more reasons not related to the individual workers concerned( 3) and in relation to rights and obligations relating to employers and employees on the transfer or merger of undertakings, businesses or parts of businesses( 4).

Citation, commencement and extent

1. (1) These Regulations may be cited as the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014.

(2) These Regulations come into force on 31stJanuary 2014.

(3) These Regulations do not extend to Northern Ireland.

Interpretation

2. For the purposes of these Regulations-

"TUPE transfer" means-

(a) a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006( 5), or(b) anything else regarded, by virtue of an enactment, as a relevant transfer for the purposes of those Regulations.

Amendment of the Trade Union and Labour Relations (Consolidation) Act 1992

3. (1) In Chapter 2 of Part 4 of the Trade Union and Labour Relations (Consolidation) Act 1992( 6) (industrial relations: procedure for handling redundancies), after section 198 insert-

"Employees being transferred to the employer from another undertaking

198A.

(1) This section applies where the following conditions are met-(a) there is to be, or is likely to be, a relevant transfer,(b) the transferee is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, and(c) the individuals who work for the transferor and who are to be (or are likely to be) transferred to the transferee's employment under the transfer ("transferring individuals") include one or more individuals who may be affected by the proposed dismissals or by measures taken in connection with the proposed dismissals.(2) Where this section applies, the transferee may elect to consult, or to start to consult, representatives of affected transferring individuals about the proposed dismissals before the transfer takes place ("pre-transfer consultation").(3) Any such election-(a) may be made only if the transferor agrees to it, and(b) must be made by way of written notice to the transferor.(4) If the transferee elects to carry out pre-transfer consultation-(a) sections 188 to 198 apply from the time of the election (and continue to apply after the transfer) as if the transferee were already the transferring individuals' employer and as if any transferring individuals who may be affected by the proposed dismissals were already employed at the establishment mentioned in subsection (1)(b) (but this is subject to section 198B), and(b) the transferor may provide information or other assistance to the transferee to help the transferee meet the requirements of this Chapter.(5) A transferee who elects to carry out pre-transfer consultation may cancel that election at any time by written notice to the transferor.(6) If the transferee cancels an election to carry out pre-transfer consultation-(a) sections 188 to 198 no longer apply as mentioned in subsection (4)(a),(b) anything done under those sections has no effect so far as it was done in reliance on the election,(c) if the transferee notified an appropriate representative, a transferring individual or the Secretary of State of the election or the proposed dismissals, the transferee must notify him or her of the cancellation as soon as reasonably practicable, and(d) the transferee may not make another election under subsection (2) in relation to the proposed dismissals.(7) For the purposes of this section and section 198B-

"affected transferring individual" means a transferring individual who may be affected by the proposed dismissals or who may be affected by measures taken in connection with the proposed dismissals;

"pre-transfer consultation" has the meaning given in subsection (2);

"relevant transfer" means-

(a) a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006( 7),(b) anything else regarded, by virtue of an enactment, as a relevant transfer for the purposes of those Regulations, or(c) where an enactment provides a power to make provision which is the same as or similar to those Regulations, any other novation of a contract of employment effected in the exercise of that power,

and "transferor" and "transferee" are to be construed accordingly;

"transferring individual" has the meaning given in subsection (1)(c).

Section 198A: supplementary

198B.

(1) Where section 198A applies and the transferee elects to carry out pre-transfer consultation (and has not cancelled the election), the application under section 198A(4)(a) of sections 188 to 198 is (both before and after the transfer) subject to the following modifications-(a) for section 188(1B)(a) substitute-"(a) for transferring individuals of a description in respect of which an independent trade union is recognised by the transferor, representatives of that trade union,(aa) for employees, other than transferring individuals, of a description in respect of which an independent trade union is recognised by the transferee, representatives of that trade union, or";(b) in section 188(5), for "the employer" substitute "the transferor or transferee";(c) in section 188(5A), for "shall allow the appropriate representatives access to the affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate" substitute "shall ensure that the appropriate representatives are allowed access to the affected transferring individuals and that such accommodation and other facilities as may be appropriate are afforded to those representatives";(d) in section 188(7), at the end insert-

"A failure...

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