单词 | relevant transfer |
释义 | relevant transfer There are a number of important issues where a relevant transfer occurs. First there is an automatic transfer of the transferor’s rights and obligations arising from the employment relationship they have with their staff. Because of this the employee’s terms and conditions (with exceptions in the area of pension rights) must be maintained by the new employer (the transferee). There are some circumstances in which changes to the terms and conditions may be agreed by employer and employee, in particular where the transferor employer is subject to insolvency proceedings. Secondly, a relevant transfer cannot be the basis for dismissal unless an employee can be shown to have been dismissed for economic, technical, or organizational reasons. Where an employee, being aware of a proposed transfer, informs either the transferor or the transferee that he objects to the transfer, his transfer does not take effect and his contract of employment is terminated, but he has no claim for unfair dismissal. If a dismissal occurs as a direct result of the transfer this is automatically unfair. If an employer seeks to argue a dismissal was for an economic, technical, or organizational reason, it is not automatically unfair but it can still be found to be unfair depending on the employer’s procedure. Finally, TUPE provides for a consultative process to ensure the exchange of information between the transferee, the transferor, and the staff who may be affected. The transferor has a duty to inform and consult with a recognized independent trade union when any of its members may be affected by the transfer. The employer must inform union representatives in writing, long enough before the relevant transfer to enable consultations to take place, of the fact that a transfer is to take place; when this is to occur and the reasons for it; the legal, economic, and social implications of the transfer for the affected employees; and the measures the employer is to take (if any) in relation to those employees. If there are no employee representatives, information must be given to all employees. The transferee has a duty to provide the transferor with sufficient information. During consultations the employer has a duty to consider any representations made by trade union or staff representatives and reply to them; if he rejects them, he is obliged to give his reasons for doing so. If any employer fails to inform or consult, a complaint may be presented to an employment tribunal within three months of the completion of the relevant transfer. The employer can argue that his failure to perform a particular duty was due to special circumstances but that he took all reasonably practicable steps to inform and consult. Although this is a potential defence, tribunals interpret it very narrowly. Insolvency does not amount to special circumstances. If the complaint is upheld, the tribunal can order the employer to pay appropriate compensation not exceeding 13 weeks’ pay for the employee(s) in question. |
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