Made | 3rd April 2006 | ||
Coming into operation | 6th April 2006 |
(2) In these Regulations, references to "organised grouping of employees" shall include a single employee.
(3) For the purposes of these Regulations the representative of a trade union recognised by an employer is an official or other person authorised to carry on collective bargaining with that employer by that trade union.
(4) The Interpretation Act (Northern Ireland) 1954 [10] shall apply to these Regulations as it applies to an Act of the Northern Ireland Assembly.
Service provision change
3.
—(1) These Regulations apply to a service provision change, that is a situation in which—
and in which the conditions set out in paragraph (2) are satisfied.
(2) The conditions referred to in paragraph (1) are that—
(b) the activities concerned do not consist wholly or mainly of the supply of goods for the client's use.
(3) Subject to paragraph (1), these Regulations apply to—
(c) a service provision change where persons employed in the business or part transferred ordinarily work outside the United Kingdom.
(4) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a service provision change.
(5) A service provision change—
(6) In this regulation "contractor" includes a sub-contractor.
Effect of service provision change on contracts of employment
4.
—(1) Except where objection is made under paragraph (7), a service provision change shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the service provision change, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.
(2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a service provision change—
(3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a service provision change, is a reference to a person so employed immediately before the change, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, where the change is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions.
(4) Subject to regulation 9, in respect of a contract of employment that is, or will be, transferred by paragraph (1), any purported variation of the contract shall be void if the sole or principal reason for the variation is—
(5) Paragraph (4) shall not prevent the employer and his employee, whose contract of employment is, or will be, transferred by paragraph (1), from agreeing a variation of that contract if the sole or principal reason for the variation is—
(6) Paragraph (2) shall not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of and sentenced for any offence.
(7) Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee.
(8) Subject to paragraphs (9) and (11), where an employee so objects, the service provision change shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor.
(9) Subject to regulation 9, where a service provision change 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 paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.
(10) No damages shall be payable by an employer as a result of a dismissal falling within paragraph (9) in respect of any failure by the employer to pay wages to an employee in respect of a notice period which the employee has failed to work.
(11) Paragraphs (1), (7), (8) and (9) are without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice in acceptance of a repudiatory breach of contract by his employer.
Effect of service provision change on collective agreements
5.
Where at the time of a service provision change there exists a collective agreement made by or on behalf of the transferor with a trade union recognised by the transferor in respect of any employee whose contract of employment is preserved by regulation 4(1) above, then—
Effect of service provision change on trade union recognition
6.
—(1) This regulation applies where, after a service provision change, the organised grouping of resources or employees to which the change relates maintains an identity distinct from the remainder of the transferee's undertaking.
(2) Where before such a change an independent trade union is recognised to any extent by the transferor in respect of employees of any description who in consequence of the change become employees of the transferee, then, after the change—
Dismissal of employee because of service provision change
7.
—(1) Where either before or after a service provision change, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part XI of the 1996 Order (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is—
(2) This paragraph applies where the sole or principal reason for the dismissal is a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a service provision change.
(3) Where paragraph (2) applies—
(4) The provisions of this regulation apply irrespective of whether the employee in question is assigned to the organised grouping of resources or employees that is, or will be, transferred.
(5) Paragraph (1) shall not apply in relation to the dismissal of any employee which was required by reason of the application of section 5 of the Aliens Restriction (Amendment) Act 1919[11] to his employment.
(6) Paragraph (1) shall not apply in relation to a dismissal of an employee if the application of Article 126 of the 1996 Order to the dismissal of the employee is excluded by or under any provision of that Order, the 1996 Tribunals Order or the Trade Union and Labour Relations (Consolidation) Act 1992[12] insofar as it extends to Northern Ireland, the 1992 Order or the Trade Union and Labour Relations (Northern Ireland) Order 1995[13].
Insolvency
8.
—(1) If at the time of a service provision change the transferor is subject to relevant insolvency proceedings paragraphs (2) to (6) apply.
(2) In this regulation "relevant employee" means an employee of the transferor—
(3) The relevant statutory scheme specified in paragraph (4)(b) shall apply in the case of a relevant employee irrespective of the fact that the qualifying requirement that the employee's employment has been terminated is not met and for those purposes the date of the transfer shall be treated as the date of the termination and the transferor shall be treated as the employer.
(4) In this regulation the "relevant statutory schemes" are—
(5) Regulation 4 shall not operate to transfer liability for the sums payable to the relevant employee under the relevant statutory schemes.
(6) In this regulation "relevant insolvency proceedings" means insolvency proceedings which have been opened in relation to the transferor not with a view to the liquidation of the assets of the transferor and which are under the supervision of an insolvency practitioner.
(7) Regulations 4 and 7 do not apply to any service provision change where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of an insolvency practitioner.
Variations of contract where transferors are subject to relevant insolvency proceedings
9.
—(1) If at the time of a service provision change the transferor is subject to relevant insolvency proceedings these Regulations shall not prevent the transferor or transferee (or an insolvency practitioner) and appropriate representatives of assigned employees agreeing to permitted variations.
(2) For the purposes of this regulation "appropriate representatives" are—
(3) An individual may be an appropriate representative for the purposes of both this regulation and regulation 13 provided that where the representative is not a trade union representative he is either elected by or has authority from assigned employees (within the meaning of this regulation) and affected employees (as described in regulation 13(1)).
(4) In Article 92 of the 1996 Order (time off for carrying out trade union duties) in paragraph (1), for the full-stop at the end of sub-paragraph (e) there is substituted ";" and after that there is inserted—
(5) Where assigned employees are represented by non-trade union representatives—
(6) A permitted variation shall take effect as a term or condition of the assigned employee's contract of employment in place, where relevant, of any term or condition which it varies.
(7) In this regulation—
Pensions
10.
—(1) Regulations 4 and 5 shall not apply—
(2) For the purposes of paragraphs (1) and (3), any provisions of an occupational pension scheme which do not relate to benefits for old age, invalidity or survivors shall not be treated as being part of the scheme.
(3) An employee whose contract of employment is transferred in the circumstances described in regulation 4(1) shall not be entitled to bring a claim against the transferor for—
arising out of a loss or reduction in his rights under an occupational pension scheme in consequence of the transfer, save insofar as the alleged breach of contract or dismissal (as the case may be) occurred prior to the date on which these Regulations took effect.
Notification of employee liability information
11.
—(1) The transferor shall notify to the transferee the employee liability information of any person employed by him who is assigned to the organised grouping of resources or employees that is the subject of a service provision change —
(2) In this regulation and in regulation 12 "employee liability information" means—
within the previous two years, in circumstances where the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004[15] apply;
(d) information of any court or tribunal case, claim or action—
(e) information of any collective agreement which will have effect after the transfer, in its application in relation to the employee, pursuant to regulation 5(a).
(3) Employee liability information shall contain information as at a specified date not more than fourteen days before the date on which the information is notified to the transferee.
(4) The duty to provide employee liability information in paragraph (1) shall include a duty to provide employee liability information of any person who would have been employed by the transferor and assigned to the organised grouping of resources or employees that is the subject of a service provision change immediately before the change if he had not been dismissed in the circumstances described in regulation 7(1), including, where the change is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions.
(5) Following notification of the employee liability information in accordance with this regulation, the transferor shall notify the transferee in writing of any change in the employee liability information.
(6) A notification under this regulation shall be given not less than fourteen days before the service provision change or, if special circumstances make this not reasonably practicable, as soon as reasonably practicable thereafter.
(7) A notification under this regulation may be given—
Remedy for failure to notify employee liability information
12.
—(1) On or after a service provision change, the transferee may present a complaint to an industrial tribunal that the transferor has failed to comply with any provision of regulation 11.
(2) An industrial tribunal shall not consider a complaint under this regulation unless it is presented—
(3) Where an industrial tribunal finds a complaint under paragraph (1) well-founded, the tribunal—
(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances, subject to paragraph (5), having particular regard to—
(5) Subject to paragraph (6), the amount of compensation awarded under paragraph (3) shall be not less than £500 per employee in respect of whom the transferor has failed to comply with a provision of regulation 11, unless the tribunal considers it just and equitable, in all the circumstances, to award a lesser sum.
(6) In ascertaining the loss referred to in paragraph (4)(a) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to any damages recoverable under common law.
(7) Article 20 of the 1996 Tribunals Order (conciliation) shall apply to the right conferred by this regulation and to proceedings under this regulation as it applies to the rights conferred by that Order and the industrial tribunal proceedings mentioned in that Order.
Duty to inform and consult representatives
13.
—(1) In this regulation and regulations 14 and 15 references to affected employees, in relation to a service provision change, are to any employees of the transferor or the transferee (whether or not assigned to the organised grouping of resources or employees that is the subject of a service provision change) who may be affected by the change or may be affected by measures taken in connection with it; and references to the employer shall be construed accordingly.
(2) Long enough before a service provision change to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives of—
(3) For the purposes of this regulation the appropriate representatives of any affected employees are—
(4) The transferee shall give the transferor such information at such a time as will enable the transferor to perform the duty imposed on him by virtue of paragraph (2)(d).
(5) The information which is to be given to the appropriate representatives shall be given to each of them by being delivered to them, or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the trade union at the address of its head or main office.
(6) An employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the service provision change, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures.
(7) In the course of those consultations the employer shall—
(8) The employer shall allow the appropriate representatives access to any affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.
(9) If in any case there are special circumstances which render it not reasonably practicable for an employer to perform a duty imposed on him by any of paragraphs (2) to (7), he shall take all such steps towards performing that duty as are reasonably practicable in the circumstances.
(10) Where—
the employer shall be treated as complying with the requirements of this regulation in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.
(11) If, after the employer has invited any affected employees to elect representatives, they fail to do so within a reasonable time, he shall give to any affected employees the information set out in paragraph (2).
(12) The duties imposed on an employer by this regulation shall apply irrespective of whether the decision resulting in the service provision change is taken by the employer or a person controlling the employer.
Election of employee representatives
14.
—(1) The requirements for the election of employee representatives under regulation 13(3) are that—
(2) Where, after an election of employee representatives satisfying the requirements of paragraph (1) has been held, one of those elected ceases to act as an employee representative and as a result any affected employees are no longer represented, those employees shall elect another representative by an election satisfying the requirements of paragraph (1)(a), (e), (f) and (i).
Failure to inform or consult
15.
—(1) Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an industrial tribunal on that ground—
(2) If on a complaint under paragraph (1) a question arises whether or not it was reasonably practicable for an employer to perform a particular duty or as to what steps he took towards performing it, it shall be for him to show—
(3) If on a complaint under paragraph (1) a question arises as to whether or not an employee representative was an appropriate representative for the purposes of regulation 13, it shall be for the employer to show that the employee representative had the necessary authority to represent the affected employees.
(4) On a complaint under paragraph (1)(a) it shall be for the employer to show that the requirements in regulation 14 have been satisfied.
(5) On a complaint against a transferor that he had failed to perform the duty imposed upon him by virtue of regulation 13(2)(d) or, so far as relating thereto, regulation 13(9), he may not show that it was not reasonably practicable for him to perform the duty in question for the reason that the transferee had failed to give him the requisite information at the requisite time in accordance with regulation 13(4) unless he gives the transferee notice of his intention to show that fact; and the giving of the notice shall make the transferee a party to the proceedings.
(6) In relation to any complaint under paragraph (1), a failure on the part of a person controlling (directly or indirectly) the employer to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement.
(7) Where the tribunal finds a complaint against a transferee under paragraph (1) well-founded it shall make a declaration to that effect and may order the transferee to pay appropriate compensation to such descriptions of affected employees as may be specified in the award.
(8) Where the tribunal finds a complaint against a transferor under paragraph (1) well-founded it shall make a declaration to that effect and may—
(9) The transferee shall be jointly and severally liable with the transferor in respect of compensation payable under sub-paragraph (8)(a) or paragraph (11).
(10) An employee may present a complaint to an industrial tribunal on the ground that he is an employee of a description to which an order under paragraph (7) or (8) relates and that—
(11) Where the tribunal finds a complaint under paragraph (10) well-founded it shall order the transferor or transferee as applicable to pay the complainant the amount of compensation which it finds is due to him.
(12) An industrial tribunal shall not consider a complaint under paragraph (1) or (10) unless it is presented to the tribunal before the end of the period of three months beginning with—
or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.
Failure to inform or consult: supplemental
16.
—(1) Article 247(1) of the 1996 Order (complaint to be sole remedy for breach of relevant rights) and Article 20 of the 1996 Tribunals Order (conciliation) shall apply to the rights conferred by regulation 15 and to proceedings under this regulation as they apply to the rights conferred by those Orders and the industrial tribunal proceedings mentioned in those Orders.
(2) An appeal shall lie and shall lie only to the Court of Appeal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under or by virtue of these Regulations; and section 11(1) of the Tribunals and Inquiries Act 1992[16] (appeals from certain tribunals to the High Court) shall not apply in relation to any such proceedings.
(3) "Appropriate compensation" in regulation 15 means such sum not exceeding thirteen weeks' pay for the employee in question as the tribunal considers just and equitable having regard to the seriousness of the failure of the employer to comply with his duty.
(4) Articles 16 to 24 of the 1996 Order shall apply for calculating the amount of a week's pay for any employee for the purposes of paragraph (3) and, for the purposes of that calculation, the calculation date shall be—
Employers' liability compulsory insurance
17.
—(1) Paragraph (2) applies where—
(2) Where this paragraph applies, on completion of a service provision change the transferor and the transferee shall be jointly and severally liable in respect of any liability referred to in Article 5(1) of the 1972 Order, in so far as such liability relates to the employee's employment with the transferor.
Restriction on contracting out
18.
Article 245 of the 1996 Order (restrictions on contracting out) shall apply in relation to these Regulations as if they were contained in that Order, save for that Article shall not apply in so far as these Regulations provide for an agreement (whether a contract of employment or not) to exclude or limit the operation of these Regulations.
Amendment to the 1996 Order
19.
In Article 135 of the 1996 Order (assertion of statutory right) in subsection (4)—
Amendments
20.
—(1) Schedule 1 (consequential amendments) shall have effect.
(2) Schedule 1 (Application of the Regulations to Northern Ireland) to the Transfer of Undertakings (Protection of Employment) Regulations 2006[18] shall be amended as follows—
(b) for paragraph 10(3) there is substituted—
(c) in paragraph 10 at the end of sub-paragraph (4) there is inserted—
(6) In regulation 19—
(7) In paragraph (3)(b) of regulation 7 for any reference to "that Act" there is substituted "that Order"."; and
Application
21.
—(1) These Regulations shall apply in relation to—
(2) The duty on a transferor to provide a transferee with employee liability information shall not apply in the case of a service provision change that takes place on or before 19 April 2006.
(3) Regulations 13, 14, 15 and 16 shall not apply in the case of a service provision change that is not also a transfer of an undertaking, business or part of an undertaking or business that takes place on or before 4 May 2006.
Sealed with the Official Seal of the Department for Employment and Learning on
3rd April 2006.
L.S.
D.S.S. McAuley
A senior officer of the Department for Employment and Learning
[3] See the European Communities (Designation) (No.2) Order 1977 (S.I. 1977/1718)back
[4] S.I. 1999/2790 (N.I. 9)back
[6] S.I. 1989/2405 (N.I. 19)back
[7] S.I. 1992/807 (N.I. 5)back
[8] S.I. 1996/1919 (N.I. 16)back
[9] S.I. 1996/1921 (N.I. 18)back
[11] 1919 c.92; section 5 was amended by the Former Enemy Aliens (Disabilities Removal) Act 1925 section 1 and Schedule 2, the Merchant Shipping Act 1970 section 100(3) and Schedule 5 and the Merchant Shipping Act 1995 section 314 and Schedule 12.back
[13] S.I. 1995/1980 (N.I. 12)back
[14] S.I. 1975/1503 (N.I. 15)back
[16] 1992 c.53; section 11(1) was amended by the Sea Fish (Conservation) Act 1992 (c.60) section 9, the Special Educational Needs and Disability Act 2001 (c.10) section 42(1) and Schedule 8 and S.I. 2001/3649.back
[17] S.I. 1972/963 (N.I. 6)back
[19] S.I. 1989/2405 (N.I. 19)back
[20] S.I. 1996/1921 (N.I.18)back
[21] S.I. 1996/1921 (N.I. 18).back
[22] S.I. 1999/1919 (N.I. 16).back