| It’s been a while since the courts had to deal with a really difficult TUPE case but in a recent case called London United Busways v De Marchi the Employment Appeal Tribunal (EAT) considered the issue of statutory construction regarding the interplay between Regulation 4(7) of TUPE (the right to object to a TUPE transfer) and Regulation 4(9) (the right to resign when there is a substantial change in working conditions).
Here we set out a concise and helpful summary prepared by the Judge. If you deal with TUPE regularly, you should understand it. If you don’t deal with TUPE regularly, then it probably won’t affect you and you should just seek our further detailed advice, if necessary!
- Where a relevant transfer involves, or would involve, a substantial change in working conditions to the material detriment of a person whose contract of employment is, or would be, transferred under Regulation 4(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, Regulation 4(9) confers on that person the right to treat the contract of employment as having been terminated. If he elects to exercise that right, he shall be treated for any purpose as having been dismissed by the employer, which, depending upon the circumstances, may be the transferor or the transferee. If he elects not to exercise that right, he transfers to the employment of the transferee, unless he has objected to so doing under Regulation 4(7).
- Where he objects to becoming employed by the transferee under Regulation 4(7) in circumstances in which Regulation 4(9) applies, the effect of that objection is to preclude the transfer of his contract, and of any of the rights and obligations for which Regulation 4(2) provides, to the transferee.
- In those circumstances, notwithstanding the employee’s election not to terminate the contract under Regulation 4(9), Regulation 4(8) operates so as to terminate the employee’s contract of employment with the transferor, by which entity he is treated as having been dismissed, and against which any remedy lies. He has no remedy against the transferee.
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