Contracting out of TUPE
by Liam
The ‘new’ TUPE Regulations that came in to effect in April 2006 replaced the TUPE Regulations 1981. The draftsmen added a few bits, removed a few bits and changed the section numbers around just to make life more fun for all.
Regulation 12 of old TUPE made any agreement (including a Compromise Agreement) void in so far as it:
- excluded or limited the effect of certain regulations, or
- precluded employees from presenting a complaint to an Employment Tribunal in respect of breach of certain regulations
One of the regulations that Regulation 12 affected was old Regulation 10 relating to information and consultation obligations. This meant that Compromise Agreements could not be used to compromise claims for failing to inform and consult (although arguable they could be used to compromise the right to receive an award for failing to inform and consult).
New TUPE Regulation 18 is the closest equivalent to old Regulation 12, but is significantly different. New Regulation 18 states that the law about Compromise Agreements as contained in section 203 of the Employment Rights Act 1996 applies to the TUPE Regulations 2006 as if the TUPE Regulations 2006 are part of the Employment Rights Act.
This change is important as it means employers can now compromise claims for failing to inform and consult in Compromise Agreements. If you are dealing with a TUPE situation and using a Compromise Agreement, make sure the Compromise Agreement excludes claims under TUPE 2006 and states that the Requirements of Regulation 18 of TUPE are satisfied.
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