Aprendices que abandonaron el Proceso de Formación 2019 – 2020, población víctima

The Transfer Regulations were enacted in the UK to give effect to the ARD on the safeguarding of the employees’ rights during business transfers. Like the parent law, TUPE is essentially ‘social legislation’⁴⁴ for offering greater protection to employees impacted by business transfers where there is a change of employer.⁴⁵ The essence of the policy underlying the TUPE Regulations is contained in Regulation 4 which provides for the automatic transfer of contracts of employment to the transferee except where an employee objects⁴⁶ to the transfer.

The aim is to ensure, as far as possible, that the contracts of employment of the affected employees continue unchanged with the transferee. Put differently, the

42 The Conservative Government in power then had a deep suspicion of the value of regulating the labour market. This suspicion was rife whether or not the particular regulation derived from legislation directly regulating employment relationships or from collectively established norms between employers and the trade unions. Simon Deakin, ‘Transcending the Flexibility Debate?

Deregulation and Employment in Britain 1979-1997’ (1999) ESRC Centre for Business Research, University of Cambridge Working Paper No. 13. <http://www.cbr.cam.ac.uk/pdf/wp132.pdf>

accessed 11 November 2011; Catherine Barnard and Simon Deakin, ‘In Search of Coherence: Social Policy, the Single Market and Fundamental Rights’ (2000) 32 Industrial Relations Journal 331-345.

Collective bargaining which denotes the negotiation of pay and other conditions of employment between an employer (or a group of employers) and a trade union acting for its members is a key focus in industrial relations. P Edwards, ‘The Employment Relationship and the Field of Industrial Relations’

<http://www.blackwellpublishing.com/content/BPL_Images/Content_store/Sample_chapter/978063 1222576/Edwards_C01.pdf> accessed 26 December 2011.

43 C Brewster and P Teague, European Community Social Policy and its Impact on the UK (Institute of Personnel Management, London 1989) 120-21; W Derbyshire, S Hardy and S Maffey, TUPE: Law and Practice: An Overview of the New TUPE Regulations 2006 (Spiramus Press Ltd, London 2006) .

44 Frisby (n 12).

45 Smit has articulated that in relation to the parent law (ARD) ‘this essentially social objective was added by the court, rather than by the Commission, and [that] the objective at the start certainly was to prevent unfair advantages existing between member states’. See Nicola Smit, ‘Automatic Transfer of Employment Contracts and the Power to Object’ (2003) Journal of South African Law 465, 467.

46 The courts have held in several cases that the transfer of contracts and other rights from the transferor to the transferee is automatic whether the transferee consents to it, or opposes this consequence. See generally Rotsart de Hertaling v J Benoidt SA [1997] IRLA; Celtic v Astley [2005] IRLA 649; Newns v British Airways Plc [1992] IRLR 525 CA.

188 contracts are to have effect after the transfer as if originally made between the transferred employees and the transferee. The policy behind this provision is to prevent the workers affected by the transfer from being placed in a less favourable position solely as a result of the transfer.⁴⁷

Whilst the automatic transfer of contracts where there are transfers is done in the interests of the employees, does this practice not offer to the law a principle which detracts from the notion, which Lord Atkins in Nokes v Doncaster Amalgamated Collieries Ltd⁴⁸ said was fundamental to UK employment law? ⁴⁹ That is, the principle that the services of an employee should not be transferred from one employer to another without the consent of the employee, because that is what distinguishes the employee from the serf. Commenting on the automatic and

‘compulsory’ TUPE transfer rule, Collins has articulated that the Regulations produce the ultimate commodification of labour because with TUPE the employees become intangible assets, to be sold along with ‘lock, stock and barrel’ at the transferor’s discretion.⁵⁰

The automatic transfer of contract is of course not the only effect of TUPE. There are several other effects. From the transferee’s perspective, the effect of TUPE is that where TUPE applies to a transfer, liability for anything done by the transferor before the transfer passes to the transferee. ⁵¹ This is because the transferee mandatorily steps into the shoes of the transferor inheriting virtually all of the latter’s rights, powers, duties and liabilities⁵² in respect of the transferor’s employees employed in the undertaking or business ‘immediately before’⁵³ the transfer.

The obverse of the automatic transfer of contract rule is that, upon the happening of a relevant TUPE transfer (and subject to the employee’s right to object to transfer under regulation 4 (7) not being activated), the transferor rids himself of the employees as well as the obligations incurred under their contracts of employment by transferring them to the transferee without the consent of the

47 The ECJ has emphasised this point in relation to the parent law (ARD) in several caes. See e.g. Case C-362/89 D'Urso v Ercole Marelli Elettromeccanica Generale SpA [1992] ECR I-4105 ( para 9).

48 [1940] AC 1014 HL.

49 See Lord Wedderburn in House of Lords’ debates on TUPE. See Hansard, HL Deb 10 December 1981 vol 425 col 1490.

50 Hugh Collins, ‘Dismissals on Transfer of a Business’ (1986) 15 (1) ILJ 244, 247.

51 TUPE 2006, Reg. 4 (2).

52 The liabilities that will transfer in the context of a TUPE transfer are discussed in chapter 6.

53 The meaning of these words is considered below.

189 employees concerned.⁵⁴ The implication is that where the transferee refuses to take the workforce on, the transferor would be absolved from making redundancy payments since the employee’s previous right to claim against him is no longer applicable. It is the transferee that will be responsible for any redundancy payments to be made. Evidently, TUPE imposes enormous costs on business rescues if the transferee becomes subject to these types of liabilities.

A TUPE transfer also imposes information and consultation duties on the employer.⁵⁵ Long before a relevant transfer, the employer is obliged to consult⁵⁶ with the employees’ representatives and inform them of the proposed transfer, date or proposed date of the transfer, the legal, economic and social implications of the transfer for any affected employees, the measures he envisages to take in connection with the transfer. Also, if an employee is dismissed, before or after a business transfer, the relevant employer may be liable for unfair dismissal if the sole or principal reason for the employee’s dismissal is the transfer itself or ‘a reason connected with the transfer that is not an economic, technical or organisational (ETO) reasons entailing changes in the workforce.⁵⁷

The flip side to the dismissal conundrum is that TUPE allows an employee to be dismissed for ETO reasons which entail changes in the workforce. There is the view that the reason why TUPE allows dismissals for ETO reasons which entail changes in the workforce is because since the Regulations derived from the then EEC directive – the 1977 ARD, they were ‘shot through with the competitive assumptions of the European Economic Community’.⁵⁸

In sum, these are some of the provisions of TUPE that have been very problematic when the regime is applied in the context of insolvency.⁵⁹ These provisions have created a tension between business rescue and employment in going concern rescues of insolvent businesses in the UK.

54 See e.g. Newns v British Airways Plc [1992] IRLR 525 CA; Gabriel v Peninsula Business Services &

Anor [2012] UKEAT 0190 11 2302.

55 See generally TUPE 2006, Regs. 13 - 15.

56 Case law has established that the requirement to consult with employees under TUPE applies whether or not the transfer actually takes place. See e.g. Banking Insurance and Finance Union v Barclays Bank Plc [1988] 3 CMLR 587; South Durham HA v UNISON [1995] ICR 495.

57 TUPE 2006, Reg. 7.

58 Lord McCarthy, Hansard, HL Deb 10 December 1981 vol 425 cc 1482-501.

59 This argument is developed further in chapter 6 of this thesis.

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