Employment Law - TUPE and Unlawful Discrimination
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Employment law is made up of two main sectors - TUPE and unlawful discrimination.

What is TUPE?
TUPE is short for the 'Transfer of Undertakings (Protection of Employment) Regulations'. These protect the employees of a business or service which changes hands. In effect, the employees transfer from the old employer to the new employer.

When does it apply?
It can apply in many different circumstances - when you buy or sell a business as a going concern, when you change the provision of a service, or when you take over a property operate the same business from the premises. Exactly when TUPE applies is not easy to establish, even for experts. If you think TUPE might apply to your business transaction, take specialist advice.

If I don't want the staff can I dismiss them?
No – except in very specific circumstances, any dismissals will be automatically unfair if the reason is the transfer or connected to the transfer. The exceptions are complex and difficult to argue and even then the dismissals may be unfair for other reasons.

Can I change their terms and conditions then?
No – you must take them on their existing terms and conditions. You can’t make any changes unless there is an "economical, technical or organisational reason requiring a change in the workforce". Expert advice on whether this applies should be sought.

What steps can I take to guard against the effects of TUPE?
TUPE is complex legislation and the penalties for failing to comply can be very costly indeed. If you are not experienced in TUPE and are contemplating or involved in a business transfer affected by provisions, seek expert advice.

Types of Discrimination

The law on discrimination is complex and comprehensive. The following are the key points you as the employer should consider:

What must I look out for?
It is unlawful to discriminate on grounds like sex, race, disability, religion, sexual orientation and age. Trade union activities, part time or fixed term employment status, gender re-assignment and pregnancy are other examples.

Who can make a claim against me?
You are open to a discrimination claim from anyone – they do not even have to be an employee! (They might not even want to work for you!)

What is unlawful discrimination?
Unlawful discrimination is treating someone less favourably on grounds like those listed above. This can be direct, indirect, through harassment or victimisation. There are some exceptions, such as where there is a Genuine Occupational Qualification or Requirement, but these exceptions are rare. In the event of a claim, you will be required to demonstrate that you acted justifiably and did not unlawfully discriminate.

But I would never unlawfully discriminate?
Through 'vicarious liability', YOU can be held responsible for discriminatory acts committed by your employee during employment, whether committed with, or without, your knowledge or approval. You might also be held to be liable for unlawful discrimination involving employees outside of work time.

What happens if a discrimination claim is made?
Claims are made to an Employment Tribunal. A hearing is arranged at which you can present evidence and call witnesses to support your defence. Discrimination hearings can last from one day to several weeks. If the claimant wins, there is no statutory limit to the amount of money you may be ordered to pay them.

Unlawful discrimination can be an expensive mistake – make the right decisions by consulting employment law specialists.

The above is intended to provide information of general interest about employment law but does not give legal advice. http://www.bibbycas.com.
The author can be reached at
jenny@janklin.com 

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