What's in a Name? TUPE and Changes to the Contract of Employment

What does TUPE mean?

TUPE is short for the Transfer of Undertakings (Protection of Employment) Regulations. A transfer can mean acquiring, buying, leasing, merging or selling. An undertaking is a business, company, charity, organisation or service. Protection means the protection of the employment rights. Employees are those individuals employed by the undertaking that has been acquired. 

TUPE and a Change of Contract

An interesting case recently came before the Workplace Relations Commission which examined the expectation employees have when the employee was subject to a transfer of undertaking in the course of their employment. In this case (ADJ00028128), the employee was employed as a “ramp agent” with effect from March 2011. He alleged that his employer, the respondent, owed him certain contractual entitlements. In particular, the employee argued that his employer’s calculation of his accrued annual leave entitlements was incorrect and his normal hours of work had been reduced. The employee further submitted that he should have received a new contract for the transfer from one employer to another.

The employer countered that the complainant employee had received an agreed extensive contractual documentation at the outset of his employment, prior to the transfer. They submitted that those terms were compliant with the Terms of Employment (Information) Act, 1994.

TUPE and Section 3 of the Terms of Employment (Information) Act, 1994

The Adjudication Officer noted that Section 3 of the Terms of Employment (Information) Act, 1994, provides that an employee must receive written terms of employment, signed by the employer, shortly after the commencement of their employment. In this regard, the Workplace Relations Commission noted that the employee did receive extensive written terms of employment in advance of his original commencement date. The Workplace Relations Commission further noted that, when the employee was asked what aspects of those terms were deficient for the purposes of the Act, he stated that the employee did not adhere to the terms therein but failed to give specific examples. 

TUPE and Section 5 of the Terms of Employment (Information) Act, 1994

Notwithstanding this failure, the Workplace Relations Commission noted that the employee was subject to a transfer of undertaking in the course of employment and did not receive a new contract from his “new employers”. In this regard, the Workplace Relations Commission noted that Section 5 of the Act provides that, when one of the terms of employment changes, an employee should be notified in writing of that change within one month.

That being the case, while a transfer of undertaking would not require the issuance of a new contract of employment as asserted by the employee, the Workplace Relations Commission recognised that the name of the employer should have changed. 

No evidence was submitted to the Workplace Relations Commission demonstrating that this change was notified to the employee at the relevant time. 

Further Information

For further information, please contact the author of this article, Barry Crushell.