The Transfer of Undertakings (Protection of Employment) Regulations 2006
| Jurisdiction | UK Non-devolved |
| Citation | SI 2006/246 |
2006 No. 246
TERMS AND CONDITIONS OF EMPLOYMENT
The Transfer of Undertakings (Protection of Employment) Regulations 2006
Made 6th February 2006
Laid before Parliament 7th February 2006
Coming into force 6th April 2006
The Secretary of State makes the following Regulations in exercise of the powers conferred upon him by section 2(2) of the European Communities Act 19721(being a Minister designated for the purposes of that section in relation to rights and obligations relating to employers and employees on the transfer or merger of undertakings, businesses or parts of businesses2) and section 38 of the Employment Relations Act 19993.
Citation, commencement and extent
1.—(1) These Regulations may be cited as the Transfer of Undertakings (Protection of Employment) Regulations 2006.
(2) These Regulations shall come into force on 6 April 2006.
(3) These Regulations shall extend to Northern Ireland, except where otherwise provided.
Interpretation
2.—(1) In these Regulations—
“assigned” means assigned other than on a temporary basis;
“collective agreement”, “collective bargaining” and “trade union” have the same meanings respectively as in the 1992 Act;
“contract of employment” means any agreement between an employee and his employer determining the terms and conditions of his employment;
references to “contractor” in regulation 3 shall include a sub-contractor;
“employee” means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services and references to a person’s employer shall be construed accordingly;
“insolvency practitioner” has the meaning given to the expression by Part XIII of the Insolvency Act 19864;
references to “organised grouping of employees” shall include a single employee;
“recognised” has the meaning given to the expression by section 178(3) of the 1992 Act;
“relevant transfer” means a transfer or a service provision change to which these Regulations apply in accordance with regulation 3 and “transferor” and “transferee” shall be construed accordingly and in the case of a service provision change falling within regulation 3(1)(b), “the transferor” means the person who carried out the activities prior to the service provision change and “the transferee” means the person who carries out the activities as a result of the service provision change;
“the 1992 Act” means the Trade Union and Labour Relations (Consolidation) Act 19925;
“the 1996 Act” means the Employment Rights Act 19966;
“the 1996 Tribunals Act” means the Employment Tribunals Act 19967;
“the 1981 Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 19818.
(2) For the purposes of these Regulations the representative of a trade union recognised by an employer is an official or other person authorised to carry on collective bargaining with that employer by that trade union.
(3) In the application of these Regulations to Northern Ireland the Regulations shall have effect as set out in Schedule 1.
A relevant transfer
3.—(1) These Regulations apply to—
(a)
(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;
(b)
(b) a service provision change, that is a situation in which—
(i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”);
(ii) activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client’s behalf; or
(iii) activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf,
and in which the conditions set out in paragraph (3) are satisfied.
(2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.
(3) The conditions referred to in paragraph (1)(b) are that—
(a)
(a) immediately before the service provision change—
(i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;
(ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and
(b)
(b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use.
(4) Subject to paragraph (1), these Regulations apply to—
(a)
(a) public and private undertakings engaged in economic activities whether or not they are operating for gain;
(b)
(b) a transfer or service provision change howsoever effected notwithstanding—
(i) that the transfer of an undertaking, business or part of an undertaking or business is governed or effected by the law of a country or territory outside the United Kingdom or that the service provision change is governed or effected by the law of a country or territory outside Great Britain;
(ii) that the employment of persons employed in the undertaking, business or part transferred or, in the case of a service provision change, persons employed in the organised grouping of employees, is governed by any such law;
(c)
(c) a transfer of an undertaking, business or part of an undertaking or business (which may also be a service provision change) where persons employed in the undertaking, business or part transferred ordinarily work outside the United Kingdom.
(5) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a relevant transfer.
(6) A relevant transfer—
(a)
(a) may be effected by a series of two or more transactions; and
(b)
(b) may take place whether or not any property is transferred to the transferee by the transferor.
(7) Where, in consequence (whether directly or indirectly) of the transfer of an undertaking, business or part of an undertaking or business which was situated immediately before the transfer in the United Kingdom, a ship within the meaning of the Merchant Shipping Act 19959registered in the United Kingdom ceases to be so registered, these Regulations shall not affect the right conferred by section 29 of that Act (right of seamen to be discharged when ship ceases to be registered in the United Kingdom) on a seaman employed in the ship.
Effect of relevant transfer on contracts of employment
4.—(1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.
(2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer—
(a)
(a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and
(b)
(b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.
(3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, where the transfer is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions.
(4) Subject to regulation 9, in respect of a contract of employment that is, or will be, transferred by paragraph (1), any purported variation of the contract shall be void if the sole or principal reason for the variation is—
(a)
(a) the transfer itself; or
(b)
(b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.
(5) Paragraph (4) shall not prevent the employer and his employee, whose contract of employment is, or will be, transferred by paragraph (1), from agreeing a variation of that contract if the sole or principal reason for the variation is—
(a)
(a) a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce; or
(b)
(b) a reason unconnected with the transfer.
(6) Paragraph (2) shall not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of and sentenced for any offence.
(7) Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in...
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