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

Employees being transferred to the employer from another undertaking198A

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—

  1. a

     a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 20067,

  2. b

     anything else regarded, by virtue of an enactment, as a relevant transfer for the purposes of those Regulations, or

  3. 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: supplementary198B

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 on the part of the transferor to provide information or other assistance to the transferee does not constitute special circumstances rendering it not reasonably practicable for the transferee to comply with such a requirement.

e

where an employment tribunal makes a protective award under section 189 ordering the transferee to pay remuneration for a protected period in respect of a transferring individual, then, so far as the protected period falls before the relevant transfer, the individual’s employer before the transfer is to be treated as the employer for the purpose of determining under sections 190(2) to (6) and 191 the period (if any) in respect of which, and the rate at which, the individual is entitled to be paid remuneration by the transferee under section 190(1);

f

in section 189, at the end insert—

7

If on a complaint under this section a question arises whether the transferor agreed to an election or the transferee gave notice of an election as required under section 198A(3), it is for the transferee to show that the agreement or notice was given as required.

g

in section 192, at the end insert—

5

If on a complaint under this section a question arises whether the transferor agreed to an election or the transferee gave notice of an election as required under section 198A(3), it is for the transferee to show that the agreement or notice was given as required.

h

in section 193(6), for “the employer” the second time it appears substitute “the transferor or transferee”;

i

in section 193(7), at the end insert—

A failure on the part of the transferor to provide information or other assistance to the transferee does not constitute special circumstances rendering it not reasonably practicable for the transferee to comply with any of those requirements.

j

in section 196(1), in the closing words, for “employed by the employer” substitute “employed by the transferor or transferee”;

k

for section 196(2) substitute—

2

References in this Chapter to representatives of a trade union are to officials or other persons authorised by the trade union to carry on collective bargaining with the transferee.

2

Where section 198A applies and the transferee elects to carry out pre-transfer consultation (and has not cancelled the election), both before and after the transfer section 168(1)(c) applies as follows in relation to an official of an independent trade union who, as such an official, is an affected transferring individual’s appropriate representative under section 188(1B)(a)—

a

in relation to the official’s duties as such a representative, the reference in the opening words of section 168(1) to an independent trade union being recognised by the employer is to be read as a reference to an independent trade union being recognised by the transferor;

b

the references in section 168(1)(c) to the employer in relation to section 188 are to be read as references to the transferee.

2A

References in paragraph (1)(b) to activities being carried out instead by another person (including the client) are to activities which are fundamentally the same as the activities carried out by the person who has ceased to carry them out.

4

Subject to regulation 9, any purported variation of a contract of employment that is, or will be, transferred by paragraph (1), is void if the sole or principal reason for the variation is the transfer.

5

Paragraph (4) does not prevent a variation of the contract of employment if—

a

the sole or principal reason for the variation is an economic, technical, or organisational reason entailing changes in the workforce, provided that the employer and employee agree that variation; or

b

the terms of that contract permit the employer to make such a variation.

5A

In paragraph (5), the expression “changes in the workforce” includes a change to the place where employees are employed by the employer to carry on the business of the employer or to carry out work of a particular kind for the employer (and the reference to such a place has the same meaning as in section 139 of the 1996 Act9).

5B

Paragraph (4) does not apply in respect of a variation of the contract of employment in so far as it varies a term or condition incorporated from a collective agreement, provided that—

a

the variation of the contract takes effect on a date more than one year after the date of the transfer; and

b

following that variation, the rights and obligations in the employee’s contract, when considered together, are no less favourable to the employee than those which applied immediately before the variation.

5C

Paragraphs (5) and (5B) do not affect any rule of law as to whether a contract of employment is effectively varied.

Effect of relevant transfer on contracts of employment which incorporate provisions of collective agreements4A

1

Where a contract of employment, which is transferred by regulation 4(1), incorporates provisions of collective agreements as may be agreed from time to time, regulation 4(2) does not transfer any rights, powers, duties and liabilities in relation to any provision of a collective agreement if the following conditions are met—

a

the provision of the collective agreement is agreed after the date of the transfer; and

b

the transferee is not a participant in the collective bargaining for that provision.

2

For the purposes of regulation 4(1), the contract of employment has effect after the transfer as if it does not incorporate provisions of a collective agreement which meet the conditions in paragraph (1).

1

Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee is to be treated for the purposes of Part 10 of the 1996 Act10 (unfair dismissal) as unfairly dismissed if the sole or principal reason for the dismissal is the transfer.

2

This paragraph applies where the sole or principal reason for the dismissal is an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer.

3

Where paragraph (2) applies—

a

paragraph (1) does not apply;

b

without prejudice to the application of section 98(4)11 of the 1996 Act (test of fair dismissal), for the purposes of sections 98(1) and 135 of that Act (reason for dismissal)—

i

the dismissal is regarded as having been for redundancy where section 98(2)(c) of that Act applies; or

ii

in any other case, the dismissal is regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

3A

In paragraph (2), the expression “changes in the workforce” includes a change to the place where employees are employed by the employer to carry on the business of the employer or to carry out work of a particular kind for the employer (and the reference to such a place has the same meaning as in section 139 of the 1996 Act).

a

the sole or principal reason for the variation is the transfer and not a reason referred to in regulation 4(5)(a); and

Micro-business’s duty to inform and consult where no appropriate representatives13A

1

This regulation applies if, at the time when the employer is required to give information under regulation 13(2)—

a

the employer employs fewer than 10 employees;

b

there are no appropriate representatives within the meaning of regulation 13(3); and

c

the employer has not invited any of the affected employees to elect employee representatives.

2

The employer may comply with regulation 13 by performing any duty which relates to appropriate representatives as if each of the affected employees were an appropriate representative.

3A

If on a complaint under paragraph (1), a question arises as to whether or not regulation 13A applied, it is for the employer to show that the conditions in sub-paragraphs (a) and (b) of regulation 13A(1) applied at the time referred to in regulation 13A(1).