How do the TUPE Regulations 2006 protect employees in the event of a transfer of an undertaking?

• How you answer this question will depend upon how much detail your lecturer has gone into with respect to the period before the 2006 Regulations were adopted. Here we have only been able to deal with this in a limited way, but it is important to remember that the cases at the European Court of Justice had a large influence on how the original Directive was amended (which resulted in these new TUPE Regulations).
• As a minimum you should start off this answer with a reference to the period prior to 2006 and the effect of the Court of Justice judgments on the Directive and the Regulations.
• You should then tackle the question as to what is meant by a transfer of an undertaking. This means explaining the meaning of a relevant transfer, with perhaps some reference to the Court of Justice definitions with respect to the meaning of an economic entity as opposed to an economic activity. You can then discuss the differences between a relevant transfer and a service provision change. The latter is mostly concerned with transfers in outsourcing situations.
• After this you can move on to the issue of who is assigned to the undertaking transferred and consider the position of those who only work for that part for a proportion of their time.
• Next will come the subject of compulsion. Employees do not have to transfer. If they do not wish to do so then they must make this clear. There are, however, unfortunate consequences in this situation. The employee does not transfer, but nor is he or she still employed by the transferor.
• Then you will need to deal with the issue of insolvency and how, prior to the 2006 Regulations, there was a problem with the Regulations as they were perceived to be an obstacle to the rescue of enterprises. The flexibility introduced by the 2006 Regulations needs to be considered.
• Finally you should point out that there is a requirement to inform and consult employees in good time before the transfer.
• Your conclusion might be that the Regulations are a big step forward in protecting employees involved in a transfer, but there is an issue for those that do not wish to transfer and those who may not be assigned to the part transferred.
• For more examination material you should read Questions and Answers Employment Law 2018 by Roseanne Russell, published by Oxford University Press.