Reg 3(1)(a) Is there an economic entity?

Reg 3(2) an economic entity is an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is
central or ancillary
Reg 3(1)(a) has that economic entity been transferred? Spikers question of fact

Reg 3(1)(b) has there been a change in a service provision in which activities have ceased and reg 3(3) applies?
Reg 3(3)(a) immediately before the service provision change (i) there is an organised grouping of employees in Great Britain which has as its principal purpose
the carrying out of the activities concerned on behalf of the client ; (ii) the client intends that the activities will, following the change, be carried out by the
transferee other than in connection with a single specific event or task of short-term duration and (b) the activities concerned do not consist wholly or mainly of
the supply of goods for the clients use
Reg 4(1) an employees contract of employment is not brought to an end by reason of the transfer and instead transfers from the Seller to the Buyer
Reg 4(2) Employees will have the same rights
Reg 4(3) Applies to all employees employed by the Seller immediately before the transfer
1 years continuous employment?
Can employee prove they have been dismissed; actual or constructive dismissal?
Reg 7(1)(a) Employees will be deemed to have been automatically
unfairly dismissed by reason of a transfer
Question of fact for the employment tribunal to determine whether
a dismissal is by reason of the transfer itself
A dismissal following pre-transfer collusion between the transferor
and the transferee with regard to dismissals is likely to be regarded
as a dismissal by reason of the transfer itself
Reg 7(1)(b) Employees will be deemed to have been automatically unfairly dismissed for a
reason connected with the transfer unless employer can show an ETO reason
ETO reason:
- Economic reason relating to the profitability or market performance of the transferees
business
- Technical reason relating to the nature of equipment or production process which the
transferee operates
- Organisational reason relating to the management or organisational structure of the
transferees business
Hynd v Armstrong a transferor employer cannot rely on the transferees reason in order
to establish an ETO
Reg 7(2) & (3) If there is an ETO reason there is no automatic unfair dismissal and instead
dismissal will be regarded as redundancy or some other substantial reason to justify
dismissal
ETO reason Exists
- Capability/qualifications of employee for doing work of
kind he was employed to do
- Conduct of employee
- Employee was redundant
- Employee could not continue to work in position held
without contravening some statutory enactment
- Some other substantial reason justifying dismissal of an
employee holding position which employee held

No
Yes
Dismissal
after transfer
Reg 7(1)(a) Dismissal automatically unfair and
Reg 4(3) employee can bring a claim for
unfair dismissal against the TRANSFEREE
Yes No
Reg 7(1)(a) Dismissal automatically unfair and
Reg 4(3) employee can bring a claim for unfair
dismissal against the TRANSFEREE
TUPE


Is there a relevant transfer?
Effect of relevant transfer?
Can Employee bring an unfair dismissal claim?
Was the dismissal because of the transfer? Was the dismissal for a reason connected with the transfer?
Was dismissal handled fairly under 98(4) ERA 1996
Dismissal before transfer?
Claim against
transferor
Claim against
transferee
Claims for redundancy (2 years continuous employment)
Claims for Wrongful Dismissal
Was the dismissal before the transfer?
Was the dismissal after the transfer?
Claims for redundancy (2 years continuous employment)
Claims for Wrongful Dismissal
Reg 13(2) Long before the relevant transfer the transferor should inform the employee representatives of the fact that
the transfer is to take place, the date or the proposed date of the transfer and the reasons for it