TUPE—transnational transfers

The following Employment practice note provides comprehensive and up to date legal information covering:

TUPE—transnational transfers
Initial considerations
The territorial scope of TUPE 2006
Study on cross border transfers of undertakings
Historical EC proposals to amend the ARD
Judicial consideration of transnational transfers
Englischer Dienst Landareeitsgereit Hamburg
Holis Metal Industries v GMB
Xerox Business Services Philippines v Zeb
Practical issues

This Practice Note examines the territorial scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) and the application of TUPE 2006 to transnational (cross border) transfers, eg in relation to offshoring or near shoring outsourcing exercises.

For further information on international outsourcing generally, see Practice Note: International outsourcing.

EU-derived laws, such as much of TUPE 2006, that have been made to implement UK obligations under EU law (such as the obligation to implement Directive 2001/23/EC, the Acquired Rights Directive (ARD)), applicable in the UK at the end of the Brexit transition period/IP completion day are preserved in the UK’s domestic legal framework as retained EU law. For further information, see Practice Note: Brexit and IP completion day—implications for employment lawyers—Retained EU law.

For guidance on the impact of Brexit on this aspect of TUPE 2006 generally, see Practice Note: Brexit and IP completion day—implications for employment lawyers—Impact on TUPE.

Initial considerations

Where a dispute or claim arises in respect of an employee who works wholly or partly abroad and/or has a foreign employer, two questions will need to be determined:

•
what are the employee’s rights?
•
where should any litigation that may ultimately arise be adjudicated?

In determining these questions, three main issues arise:

•
applicable law, ie which system of law is applicable to the contract of employment under consideration?
•
international jurisdiction, ie whose courts

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