AN UPDATE ON TUPE. November 2009 Aron Neilson UNISON. Overview. Recent developments in TUPE Specific focus on TUPE and Equal Pay Law Gutridge and others v Sodexo Ltd  IRLR 721 (‘Sodexo’). Alemo-Herron v Parkwood Leisure  ILRR 322.
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The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) have significant consequences for those bringing equal pay claims.
It is important to understand the relationship between TUPE and Equal Pay law if a claimant is to lodge a claim within the time permitted by the Equal Pay Act.
Regulation 4(1) of TUPE provides that:
‘… a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have the effect after the transfer as if originally made between the person so employed and the transferee.’
Regulation 4(2) of TUPE provides that:
‘… on the completion of a relevant transfer –
all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and
any act or omission before the transfer is complete, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been act or omission of or in relation to the transferee.’
There are strict time limits within which an Equal Pay Claim can be brought and these are set out in 2ZA of the Equal Pay Act.
Normally, the time limit for bringing an Equal Pay Claim is ‘6 months after the last day on which the woman was employed in the employment’.
What about where a TUPE transfer takes effect and the employment does not actually terminate?
Claimants employed by North Tees and Hartlepool NHS Trust prior to 1 July 2001
Claimants were mainly cleaners working at Hartlepool General Hospital
Claimants comparators were maintenance assistants employed by North Tees and Hartlepool NHS Trust prior to 1 July 2001
All claimants transferred to the Respondent (R) on 1 July 2001
None of the comparators transferred
On 1 December 2006 the claimant’s brought equal pay proceedings against Sodexo relying on comparators who had not transferred over to Sodexo.