THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES Automatic statutory transfer of terms and conditions of employment In a private sector outsourcing, employees transferring to a Supplier must be employed on the same terms after the transfer as applied before the transfer in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE), but subject to a pensions exception. What benefits fall within the pensions exception? TUPE (which is derived from EU law) provides that a Supplier will not take on: • the obligations and liabilities of the outsourcing Customer which arise under or in connection with so much of a contract of employment or collective agreement as relates to an occupational pension scheme (as defined in section 1 of the Pension Schemes Act 1993 (PSA 1993)), or • any rights, powers, duties or liabilities under or in connection with any such contract or agreement and relating to such a scheme The exception is a narrow one and only applies to three

FORTHCOMING DEVELOPMENT : Section 10 of the Finance Act 2022 will increase the normal minimum pension age (NMPA) from 55 to 57 on 6 April 2028 (save for members of the firefighters, police and armed forces public service pension schemes). The Finance Act 2022 will also give members of registered pension schemes a right to take their benefits before age 57, if on or before 4 November 2021 they either had an ‘unqualified right’ to take benefits or were in the process of a substantive transfer to a scheme offering an unqualified right to a protected pension age of less than 57 on or before 4 November 2021. To benefit from this new 2028 protection, the rules of the pension scheme must have included (on 11 February 2021) an unqualified right to take the entitlement to scheme benefits before age 57. For further information, see Practice Note: Increasing the normal minimum pension age (NMPA) to 57—pensions impact. Beckmann liabilities are liabilities in respect of occupational pension benefits other than benefits relating to old age, invalidity

1 Definitions and interpretation 1.1 [Insert the following additional definitions into the definitions clause of the Asset purchase agreement] Business the business of [insert description of the business being sold/bought] operated by the Seller and all other activities including those ancillary or incidental to or in connection with such business as carried on by the Seller; Buyer [enter details] Completion completion of the sale and purchase of the Business by the performance by the parties of their respective obligations in accordance with clause [enter clause number]; [Completion Accounts the accounts prepared in accordance with clause [enter clause number];] Completion Date [the day on which Completion takes place OR the date no later than the [third] Business Day after the date on which the last of the Conditions is satisfied or waived or the date to which Completion is deferred, in each case in accordance with clause [enter clause number]]; Data Protection Laws any applicable law relating to the processing, privacy, and/or use of personal data, including: • the Privacy and Electronic

A term used to describe the employer's statutory obligation to enter into information and consultation with its employees in a transfer of undertaking situation.

ARCHIVED: This Practice Note has been archived and is not maintained. TUPE 2006, PF2s and other PPPs Public/private partnership (PPP) projects, including Private Finance 2 (PF2) projects, can entail transfers of undertakings and service provision changes that are caught by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246. TUPE 2006 was amended on a number of points, including service provision changes, by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, SI 2014/16. Where there is doubt about whether TUPE 2006 applies as strict matter of law, there are often wider political drivers for the parties to treat a project as though it does, and this is often seen in the project documentation. Guidance on staff transfers in the public sector As well as complying with the statutory obligations set out by TUPE 2006 (as amended), public sector organisations have additional obligations with which to comply, eg the Cabinet Office Statement on Staff Transfers in the Public Sector. The Government’s

Ireland—Employment analysis: This article, was written by Melanie Crowley & Ger Connolly of Mason Hayes & CurranLLP

TUPE 2006—key points The Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) have been in force since 6 April 2006. TUPE 2006 implements Directive 2001/23/EC, the Acquired Rights Directive (ARD). This means that courts and employment tribunals were required to give TUPE 2006 a purposive construction to give effect to the purpose of the ARD as the underlying Directive, namely to safeguard employee rights on the transfer of a business. Domestic laws that have been made to implement UK obligations under EU law are assimilated law. Therefore, to the extent that TUPE 2006 implements the ARD, it is assimilated law. For further information, see Practice Note: Assimilated law. TUPE 2006 is wide-ranging. For example: • TUPE 2006 may apply whenever a client buys something that has employees associated with it—this might look like an asset, or an activity, and not a business, but TUPE 2006 may well protect those employees' rights. For example, a shopping centre is likely to have cleaners, security guards or caretakers, whose employment may be transferred to a client

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 have been in force since 6 April 2006. TUPE 2006 implements Directive 2001/23/EC, the Acquired Rights Directive (ARD). This means that courts and employment tribunals were required to give TUPE 2006 a purposive construction to give effect to the purpose of ARD as the underlying Directive, namely to safeguard employee rights on the transfer of a business. Domestic laws that have been made to implement UK obligations under EU law are assimilated law. Therefore, to the extent that TUPE 2006 implements the ARD, it is assimilated law. For further information, see Practice Note: Assimilated law. TUPE 2006 is wide-ranging. For example: • TUPE 2006 may apply whenever a client buys something that has employees associated with it: this might look like an asset, or an activity, and not a business, but TUPE 2006 may well protect those employees' rights. For example, a shopping centre is likely to have cleaners, security guards or caretakers, whose employment may be transferred to a client when it buys

This Practice Note considers the meaning of transfer of an undertaking, transfer of a business, and transfer of part of an undertaking or business, within the meaning of regulation 3(1)(a) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246. It examines the key elements of economic entity, retention of identity, ie whether the economic entity retains its identity after the transfer, organised grouping of resources, whether a single employee can be an undertaking, the need for stability, ie a stable economic entity, and illegal purposes. It also examines how to assess whether a relevant transfer takes place, transfers effected by a series of transactions, the date of transfer, share sales, intra-group transfers, the ‘going concern’ test (Spijkers), temporary cessation of activities, the transfer of part of a business or undertaking, fragmentation, the need for the undertaking to be situated in the United Kingdom (UK) and public administrative authorities. Relevant transfers under the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) are: • business transfers—involving the transfer of an undertaking or

This checklist gives an overview of the steps to take and issues to consider when the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 apply to a business sale or service provision change. It also highlights relevant Practice Notes and Precedent materials. It is not aimed at clients but may be adapted for that audience. See also the following TUPE-related checklists: • What transfers under TUPE, and who is liable—checklist • Pension issues on a TUPE transfer—checklist • Checklist—immigration-related requirements on a TUPE transfer • Drafting a tripartite settlement agreement—checklist Legal background For an outline of the effect and requirements of TUPE 2006 generally, see TUPE and asset purchases—overview. Obtain essential information • Identify precisely what is being transferred or contracted-out (it may be a business or part of a business or an economic activity) and how this will be defined in the relevant documentation. See Practice Notes: TUPE—business transfers and TUPE—service provision changes—Service provision changes defined. This is particularly important where only part of a business is being transferred • Identify who will be transferring the business/service,

This Practice Note considers the extent to which it is possible to contract out of the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006). It examines the ability to settle claims under TUPE 2006 by settlement agreement (formerly known as a compromise agreement) and tripartite settlement agreements. It also explains the general rule that claims where the remedy arises under TUPE 2006 cannot be settled, but claims where the remedy arises under other legislation, eg Employment Rights Act 1996 (ERA 1996) may be settled. Finally, it considers Advisory, Conciliation and Arbitration Service (Acas) conciliation of certain TUPE 2006 claims and the application of the early conciliation requirement to those claims. 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 assimilated law. For

This Practice Note considers how the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) is relaxed in insolvency situations. Much of TUPE 2006, SI 2006/246 implemented the UK’s obligation under EU law to implement Directive 2001/23/EC, the Acquired Rights Directive (ARD). Before 1 January 2024, the relevant parts of TUPE 2006, SI 2006/246 were retained EU-derived domestic legislation under the European Union (Withdrawal) Act 2018 (EU(W)A 2018). From 1 January 2024, under the Retained EU Law (Revocation and Reform) Act 2023, EU-derived domestic legislation is ‘assimilated’ into domestic law by virtue of the fact it is generally stripped of EU-derived interpretive effects (eg supremacy of EU law, directly effective rights, and general principles previously retained under EU(W)A 2018). For more information, see Practice Note: Assimilated law. This Practice Note refers to case law of the Court of Justice of the European Union (CJEU). For guidance on whether judgments of the CJEU are binding on UK courts, see Practice Note: Assimilated law—Assimilated case law. Key principles TUPE 2006,