VICTORY FOR GMB UNION

Transfer of Undertakings (Protection of Employment) Regulations 2006. Swish Products Ltd v GMB

The GMB's recent success in the Employment Appeal Tribunal secured a significant clarification of the extent of the Transfer of Undertakings (Protection of Employment) Regulations 2006. (TUPE). The case concerned 76 members of the GMB working for Swish Products Ltd, who announced in early 2006 that workers would be made redundant after a decision to transfer the work to Israel resulting in closure of part of their UK plant.  

EAD solicitors were instructed to lodge claims on behalf of Union members for a failure to properly consult with employees affected prior to a transfer. The Respondent applied to the Employment Tribunal to strike out the claims brought by the Union on the basis that TUPE Regulations did not apply to transfers of business which after the transfer is based outside the United Kingdom and also outside the European Union. The Employment Tribunal rejected the application and the Employers appealed to the Employment Appeal Tribunal.  The GMB were keen to continue to support this claim as at the heart of the appeal was an issue previously untested in UK case law.

The Employment Appeal Tribunal found that the protection under the TUPE Regulations did apply to transfers from the UK to a non EU entity. The outcome is of huge significance for Trade Unions as it re-enforces the protection and rights of workers in the context of modern off-shoring exercises such as in the context of a transfer of call centres to the Indian sub-continent.

Now in the event of a transfer of employment the information and consultation requirements shall apply and thus prior consultation with the workforce must take place otherwise the Purchaser shall face considerable liability to the transferred employees. The decision should greatly assist Trade Unions in dealing with a transfer of UK based jobs outside of the jurisdiction.