Transfer of Undertakings (Protection of Employment) Regulations 1981

JurisdictionUK Non-devolved

1981 No. 1794

TERMS AND CONDITIONS OF EMPLOYMENT

The Transfer of Undertakings (Protection of Employment) Regulations 1981

14thDecember 1981

Regulations 1 to 3 and 10 to 131stFebruary 1982Regulations 4 to 9 and 141stMay 1982

Whereas a draft of these Regulations has been approved by resolution of each House of Parliament in pursuance of paragraph 2(2) of Schedule 2 to the European Communities Act 1972(a):

Now, therefore, the Secretary of State, being a Minister designated for the purposes of section 2(2) of that Act in relation to rights and obligations relating to employers and employees on the transfer or merger of undertakings, businesses or parts of businesses(b), in exercise of the powers conferred by that section, hereby makes the following Regulations—

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Transfer of Undertakings (Protection of Employment) Regulations 1981.

(2) These Regulations, except Regulations 4 to 9 and 14, shall come into operation on 1st February 1982 and Regulations 4 to 9 and 14 shall come into operation on 1st May 1982.

(3) These Regulations, except Regulations 11(10) and 13(3) and (4), extend to Northern Ireland.

Interpretation

2.—(1) In these Regulations—

"collective agreement", "employers' association", and "trade union" have the same meanings respectively as in the 1974 Act or, in Northern Ireland, the 1976 Order;

"collective bargaining" has the same meaning as it has in the 1975 Act or, in Northern Ireland, the 1976 Order;

"contract of employment" means any agreement between an employee and his employer determining the terms and conditions of his employment;

"employee" means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not.

(a) 1972 c. 68.

(b) The European Communities (Designation) (No. 2) Order 1977 (S.I. 1977/1718).

include anyone who provides services under a contract for services and references to a person's employer shall be construed accordingly;

"the 1974 Act", "the 1975 Act", "the 1978 Act" and "the 1976 Order" mean, respectively, the Trade Union and Labour Relations Act 1974(a), the Employment Protection Act 1975 (b), the Employment Protection (Consolidation) Act 1978(c) and the Industrial Relations (Northern Ireland) Order 1976(d);

"recognised", in relation to a trade union, means recognised to any extent by an employer, or two or more associated employers, (within the meaning of the 1978 Act, or, in Northern Ireland, the 1976 Order), for the purpose of collective bargaining;

"relevant transfer" means a transfer to which these Regulations apply and "transferor" and "transferee" shall be construed accordingly; and

"undertaking" includes any trade or business but does not include any undertaking or part of an undertaking which is not in the nature of a commercial venture.

(2) References in these Regulations to the transfer of part of an undertaking are references to a transfer of a part which is being transferred as a business and, accordingly, do not include references to a transfer of a ship without more.

(3) 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 union.

A relevant transfer

3.—(1) Subject to the provisions of these Regulations, these Regulations apply to a transfer from one person to another of an undertaking situated immediately before the transfer in the United Kingdom or a part of one which is so situated.

(2) Subject as aforesaid, these Regulations so apply whether the transfer is effected by sale or by some other disposition or by operation of law.

(3) Subject as aforesaid, these Regulations so apply notwithstanding—

(a) that the transfer is governed or effected by the law of a country or territory outside the United Kingdom;

(b) that persons employed in the undertaking or part transferred ordinarily work outside the United Kingdom;

(c) that the employment of any of those persons is governed by any such law.

(4) It is hereby declared that a transfer of an undertaking or part of one may be effected by a series of two or more transactions between the same parties, but in determining whether or not such a series constitutes a single transfer regard shall be had to the extent to which the undertaking or part was controlled by the transferor and transferee respectively before the last transaction, to the lapse of time between each of the transactions, to the intention of the parties and to all the other circumstances.

(5) Where, in consequence (whether directly or indirectly) of the transfer of an undertaking or part of one which was situated immediately before

(a) 1974 c. 52.

(b) 1975 c. 71.

(c) 1978 c. 44.

(d) S.I. 1976/1043 (N.I. 16).

the transfer in the United Kingdom, a ship within the meaning of the Merchant Shipping Act 1894 (a) registered in the United Kingdom ceases to be so registered, these Regulations shall not affect the right conferred by section 5 of the Merchant Shipping Act 1970 (b) (right of seamen to be discharged when ship ceases to be registered in the United Kingdom) on a seaman employed in the ship.

Transfers by receivers and liquidators

4.—(1) Where the receiver of the property or part of the property of a company or, in the case of a creditors' voluntary winding up, the liquidator of a company transfers the company's undertaking, or part of the company's undertaking (the "relevant undertaking") to a wholly owned subsidiary of the company, the transfer shall for the purposes of these Regulations be deemed not to have been effected until immediately before—

(a) the transferee company ceases (otherwise than by reason of its being wound up) to be a wholly owned subsidiary of the transferor company; or

(b) the relevant undertaking is transferred by the transferee company to another person;

whichever first occurs, and, for the purposes of these Regulations, the transfer of the relevant undertaking shall be taken to have been effected immediately before that date by one transaction only.

(2) In this Regulation—

"creditors' voluntary winding up" has the same meaning as in the Companies Act 1948(c) or, in Northern Ireland, the Companies Act (Northern Ireland) 1960(d); and

"wholly owned subsidiary" has the same meaning as it has for the purposes of section 150 of the Companies Act 1948 and section 144 of the Companies Act (Northern Ireland) 1960.

Effect of relevant transfer on contracts of employment, etc.

5.—(1) A relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the...

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