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

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(1) (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(2),

(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 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.”.

(2) In section 299 of the Trade Union and Labour Relations (Consolidation) Act 1992(3) (index of defined expressions)—

(a) After the entry for “affected employees” insert—

““affected transferring individual” (in sections 198A and 198B)

section 198A(7)”;

(b) after the entry for “president” insert—

““pre-transfer consultation” (in sections 198A and 198B)

section 198A(7)”;

(c) after the entry for “recognised, recognition and related expressions” insert—

““relevant transfer” (in sections 198A and 198B)

section 198A(7)”;

(d) after the entry for “trade union” insert—

““transferee” and “transferor” (in sections 198A and 198B)	section 198A(7)
“transferring individual” (in sections 198A and 198B)	section 198A(7)”.

(1)

1992 c.52. The main relevant amendments to Chapter 2 of Part 4 are: the Trade Union Reform and Employment Rights Act 1993 (c.19), sections 34 and 49(2) and Schedule 8 paragraphs 70 and 71; the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995, (S.I. 1995/2587), regulations 3, 4, 5 and 6; the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999 (S.I. 1999/1925), regulations 3 to 6; the Collective Redundancies (Amendment) Regulations 2006 (S.I. 2006/2387), regulation 3; the Agency Workers Regulations 2010 (S.I. 2010/93), regulation 25, Schedule 2, Part 1, paragraphs 1 and 4; the Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 (S.I. 2013/763), article 3; and the Enterprise and Regulatory Reform Act 2013 (c.24), section 8, Schedule 2, paragraphs 1, 11 and 12.

(2)

S.I. 2006/246.

(3)

Relevant amendments are the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (S.I. 1995/2587), regulation 7; and the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999 (S.I. 1999/1925), regulation 7.