Safeguard or straitjacket?

Despite having been on the statute books since 1981, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) continue to prove controversial. The Times in a recent leader (23 February 2011 “Terms and Conditions”) described them as “one of the chief obstacles to business in Britain” and as a “significant deterrent to competition”. It noted the European Court of Justice’s (ECJ) decree that there is nothing in the Acquired Rights Directive (ARD) that required this country, when implementing it, to draft its regulations as tightly as TUPE is framed.

ARD v TUPE

An example of the extent of TUPE compared to the ARD, was provided in CLECE SA v Maria Socorro Martin Valor and Ayuntamiento de Cobisa (C-463/09), a referral from Spain to the ECJ, where the court held that a mere change in the provision of a service (here, the in-sourcing of a school cleaning contract) is not a relevant transfer