The question arose as to whether compensation was covered by the transaction contract: if a contractor is required to take over the staff at the conclusion of the contract, the contractor should also consider what will happen to these employees at the end of the contract. It is impossible to say with certainty whether TUPE will apply to the exit, either for legal reasons or for commercial reasons. For this reason, a contractor would be well advised to negotiate, as part of the agreement, compensation to the client with respect to the cost of any redundancies he might have to make, along with the cost of all the rights that workers can claim in connection with the dismissal or their employment, upon leaving the territory. The outgoing employer is required to provide the arriving employer with written information about the transferred workers, including identity, age, employment data, disciplinary and complaint documents, workers` rights and collective agreements, as well as all related rights and commitments that are transferred. This information should not be provided less than 28 days before the transfer, although the new employer will in practice endeavour to obtain this information much earlier. The corresponding compensation clause stated that the Harrods UR of all “employment commitments” (defined in the agreement to include “all contractual payments”) in relation to: This case nevertheless serves as a warning to practitioners when developing the provisions of the TUPE. B, for example in an asset purchase or outsourcing contract. A separate distribution clause, which is located next to the allowances, should normally provide that all debts (including wages, salaries, commissions, leave allowances, etc.) are distributed on a temporal basis, so that a portion of the corresponding rights awarded before the transfer date is borne by the transferor. When a client switches service providers, it may be a contractual term that TUPE applies and the new contractor is required to take care of the outgoing contractor`s staff. If the new contractor is required to admit that TUPE is valid as the duration of an agreement, it can be a costly concession and is an element to be considered in determining the value of the contract. It is recommended that each tender document include a provision that allows the bidder to adjust its prices when TUPE is applicable.
The question was whether compensation in the transaction contract made up wages, commissions and leave allowances for the period from April 1, 2018 to the termination date, as well as the payment of commissions for March 2018 (paid monthly late). The sum of these controversial payments was $387,303. Urban Retreats Ltd (“UR”) operated a hair and beauty salon and spa at Harrods department store, pursuant to a licensing agreement. This was terminated by a transaction agreement with an agreed termination date of April 22, 2018 (“maturity”). Harrods continued to operate the lounges and spa and many employees moved there under TUPE. The High Court considered whether a business transfer (employment protection) (TUPE) for pre-transfer earnings included amounts whose payment dates had not yet crystallized. (1) The HC concluded that the text of the compensation did not necessarily mean payments actually due and that it could include commitments incurred. The HC considered that this broader interpretation of the term “clear business sense” was given. If an independent union has been recognized by the outgoing employer for the transfer of workers, recognition is also passed on to the incoming employer.