TUPE, Trade Unions, and Collective Bargaining

What advice would you give managers of the newly merged company about each of these outstanding issues?

The case study describes a situation wherein the economic entity, Company BE, is transferred to Company AY. Under TUPE (Transfer of Undertakings [Protection of Protection] Regulations), the takeover is considered a relevant transfer, meaning BE has retained its identity under AY and both conduct fundamentally similar activities (TUPE, 2006). Since the transfer, managers believe a number of potential TUPE-related issues have emerged. As TUPE regulations protect the employees’ rights when an organisation transfers from one owner to another, these issues will be reviewed in this context (TUPE, 2006).

The first involves three former BE employees with outstanding employment tribunal claims. As the employees brought their claims against BE before the transfer, AY have inherited liability as the new employer. It is advised AY thoroughly review the outstanding claims, be prepared to defend them, and pay any compensation awarded by the tribunal. Should AY fail to seriously engage, it risks the tribunal proceeding in absentia and arbitrating the claims solely on the claimants’ evidence. The second concerns contract termination of BE’s lawyers, caterers, and courier to exclusively use established AY providers. It is advised AY review the terms of the contracts with BE’s service providers and comply with any applicable contractual obligations or termination clauses. Should AY breach these contracts it could result in legal action against the organisation (McMullen, 2018).

The third involves termination of three employment contracts with immediate effect: BE’s Finance Director, as AY does not require two FDs; a florist, employed by BE on a casual basis; and a Marketing Administrator, employed by BE and three months absent on grounds of ‘stress’. TUPE regulations state dismissals related to a transfer are automatically unfair unless there is an economic, technical, or organisational reason (TUPE, 2006). It is therefore disadvised AY terminate these contracts with immediate effect unless there is a serious breach of contract or gross misconduct. However, if AY maintains intent, it should follow a fair redundancy process for the FD, give reasonable notice to the florist, and follow a fair sickness absence management process for the MA. The reason for the latter follows, if the ‘stress’ adversely effects daily endeavours, the MA could be entitled to protection under Equality Act 2010.

Did Mr Burgess win the case? Why? Discuss your thoughts.

The case of Burgess v Bass Taverns Ltd [1995] EWCA Civ 40 was an appeal against a decision reached by the Employment Appeal Tribunal. The timeline of this case is as follows:

The golden thread through many moral approaches encompasses integrity, credibility, transparency, and trustworthiness (Armstrong and Taylor, 2023). Plausible ethical dilemmas HR could engage with include: the harmonisation of assorted interests and viewpoints, conflict resolution, managing uncertainty, and promoting social responsibility (Winstanley and Woodall, 2000).

• June 1992: Mr Burgess left the employ of Bass Taverns after being demoted from his position of trainer manager due to a presentation he made to trainee managers. The presentation was part of Mr Burgess’ association with the National Association of Licensed House Managers (NALHM), an independent trade union. Mr Burgess had disparaged Bass Taverns during the presentation and showed pictures of battered licensees.
• 18 March 1993: Mr Burgess brought a case of unfair dismissal against his employer, Bass Taverns. The Industrial Tribunal determined Mr Burgess had been unfairly dismissed by Bass Taverns owing to demotion, not trade union activities.
• 2 February 1994: Mr Burgess appealed to the Employment Appeal Tribunal to dispute the Industrial Tribunal’s finding that he had not been dismissed for trade union activities. The Tribunal found Bass Taverns had violated Section 58 of the Employment (Protection and Consolidation) Act 1978 in dismissing Mr Burgess for trade union activities.
• 31 March 1995: Bass Taverns appealed against this decision from the Employment Appeal Tribunal at the Court of Appeal (Civil Division). However, the Court dismissed the appeal, and the prior judgement made regarding dismissal for trade union activities was upheld. Constructive dismissal was not disputed as attributable to the circumstances of demotion.

In summary, these judgements determined Bass Taverns had violated UK employment on two counts: constructive dismissal following demotion and dismissal for trade union activities (EPCA, 1978). Overall, it could be argued Mr Burgess prevailed in his case. The Court of Appeal (Civil Division) dismissed the appeal by Bass Taverns and upheld the Employment Appeal Tribunal’s decision that Mr Burgess was dismissed for taking part in trade union activities. By reason of that finding, Mr Burgess was entitled to a special award by way of a substantial amount, in addition to the agreed basic and compensatory award for unfair dismissal (EPCA, 1978).