Acas Code to trigger notification of disciplinary and grievance procedures
The Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2009 will now require a transferor to notify the transferee about any disciplinary or grievance procedures taken in the previous two years which are covered by the revised Acas Code of Practice in respect of the jurisdictions in Schedule 2 of the Trade Unions and Labour Relations (Consolidation) Act 1992.
Regulation 11 of TUPE 2006 required a transferor to supply certain information about its employees to the transferee upon a transfer being scheduled to take place, including information about any liability arising from any disciplinary procedure taken against, and any grievance procedure taken by, an employee within the two years preceding the transfer date in circumstances where the statutory dispute resolution procedures applied.
On 6 April 2009, the statutory dispute resolution procedures were abolished in their entirety, (albeit subject to transitional provisions), and were replaced by a fully revised Acas Code of Practice on disciplinary and grievance procedures. As a consequence of the abolition of the statutory procedures, the Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2009 made a change to Regulation 11 of TUPE 2006. Regulation 11 now requires a transferor to provide information about any disciplinary and grievance procedure taken in the previous two years where the revised Acas Code of Practice applies, as opposed to where the Dispute Resolution Regulations applied.
Although the change looks simple at face value, it is possible that a transferee will still inherit liability for breach of the statutory dispute resolution procedures for some time to come. Transferees will, therefore, want to ensure that they receive all necessary information regarding disciplinary and grievance proceedings to which the statutory dispute resolution procedures applied as well as the Acas Code. Where the matter is covered by both the Code and the old statutory procedures, there will be no problem. But if it is not, e.g. the Code does not cover incapability caused by illness, then there is no statutory obligation to provide the information, which will mean making a request for voluntary assistance.
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