TUPE - remedies for breaches of the regulations

This brief on the TUPE regulations deals with complaints to an employment tribunal and tribunal awards.

Complaining to an employment tribunal

The following may complain about breaches of the TUPE regulations to an employment tribunal.

1. An employee who has been dismissed or who has resigned in circumstances in which they consider they were entitled to resign because the consequences of the transfer include a fundamental breach of their terms and conditions of employment. An employee must complain to an employment tribunal within three calendar months, less one day, of the date when their employment ended. It may be unclear whether claims should be made against the previous or the new employer. In such cases, employees should consider whether to claim against both employers. Certain categories of employees are not entitled to claim unfair dismissal.

2. An elected or trade union representative, if the employer does not comply with the information or consultation requirements. A representative must complain within three calendar months, less one day, of the date of the transfer.

3. A representative or candidate for election who has been dismissed, or suffered detriment short of dismissal. A complaint must be made within three calendar months, less one day, of the effective date of termination (or, in the case of a detriment short of dismissal, within three calendar months, less one day, of the action complained of).

4. A representative who has been unreasonably refused time off by an employer, or whose employer has refused to make the appropriate payment for time off, may also complain to an employment tribunal. A complaint must be made within three calendar months, less one day, of the date on which it is alleged time off should have been allowed or was taken.

5. An affected employee where the employer has not complied with the information or consultation requirements other than in relation to a recognised trade union or an elected representative. A complaint must be made within three calendar months, less one day, of the date of the transfer.

6. An employee who wishes to claim a redundancy payment. The application should be made within six calendar months, less one day, of the dismissal. However, a claim for unfair selection for redundancy must be made within three calendar months, less one day.

All claims must start with the completion of an ACAS Early Conciliation form (available from the website at: www.acas.org.uk). ACAS will then ask the company whether it wishes to settle the claim.

The necessary form ET1, or ETI (Scot) in Scotland, for application to a tribunal and explanatory leaflet can be obtained from the website at: www.employmenttribunals.gov.uk

If a representative complains to an employment tribunal that an employer has not given information about action proposed by a prospective new employer, and if the employer wishes to show that it was "not reasonably practicable" to give that information because the new employer failed to hand over the necessary information at the right time, the employer must tell the new employer that they intend to give that reason for non-compliance. The effect of this will be to make the new employer a party to the tribunal proceedings.

Conciliation

The Advisory, Conciliation and Arbitration Service (ACAS), who will try to promote a settlement of the complaint without a tribunal hearing.

The services of a conciliation officer will also be available in the absence of a formal complaint, if the employee or either employer requests them. In such a case the employee or employer can get in touch with a conciliation officer through an office of ACAS. Information given to conciliation officers in the course of their duties will be treated as confidential. It may not be divulged to the tribunal without the consent of the person who gave it.

Tribunal hearing and awards

If no settlement is reached, the employment tribunal will hear the case. If complaints are upheld, awards may be made against the previous or new employer, depending on the circumstances of the transfer.

Unfair dismissal awards - Employment tribunals may order reinstatement or re-engagement of the dismissed employee if the complaint is upheld, and/or make an award of compensation. However, orders for reinstatement and reengagement are relatively rare. Where they are made, and the employer fails to reemploy the claimant further compensation can be obtained by making a fresh ET claim.

Detriment awards - The employer may be ordered to pay compensation to the person(s) concerned. The compensation will be whatever amount the tribunal considers just and equitable in all the circumstances having regard for any loss incurred by the employee.

Information and consultation awards - The employer who is at fault may be ordered to pay compensation to each affected employee, up to a maximum of 90 days pay. If employees are not paid the compensation, they may present individual complaints to the tribunal, which may order payment of the amount due to them. These complaints must be presented within three months from the date of the original award (although the tribunal may extend the time-limit if it considers that it was not reasonably practicable for the complaint to be presented within three months).

Rep Action List

1. Applying the TUPE legislation is a very complicated exercise; any rep who becomes aware of a proposed transfer, should in the first instance contact their organising team for advice on whether there are potential TUPE implications.

2. It is important to remember that consultation taken under TUPE is "undertaken with a view to seeking agreement". Agreement means consent from both parties and not one side unilaterally imposing its view.

3. Members should be aware that successfully claiming constructive dismissal is a very substantial legal hurdle because the scope of a justifiable "economic, technical or organisational reason" is potentially very wide.

The briefs in this section provide guidance and some basic details of employment rights. They do not attempt to be comprehensive, and should not be taken as an authoritative statement of the law.