The Future Lawyer Weekly Briefing – W/C 12th August 2024

TUPE: What is it and how do recent changes affect you?

By Marko Laughlin

1981 saw the passage of the Transfer of Undertakings (Protection of Employment) Regulations, with the modern iteration being formed with overhauls in 2006. Its purpose is to protect workers and their employment rights whenever businesses are transferred.

Its importance lies in establishing rights and regulations, ensuring the transfer of employees’ jobs, terms and conditions to their new company. However, what are the specifics of the legislation, and how will changes introduced in July impact employees and businesses alike?

Scope of TUPE

The protection of employees’ rights is essential when businesses change ownership. TUPE regulations are designed to protect employees and ensure employees are treated fairly. When ownership is transferred, legislation guarantees that their employment, terms and conditions will remain intact.

TUPE covers situations where a business or part of a business moves from one employer to another, including mergers where two companies combine to form a new entity. The employer’s identification must change. It applies to employees of businesses in the UK, regardless of the size of the business, as long as the part of the business transferring ownership is within the UK.

It also applies to when in-house services are outsourced to a contractor, when existing contracts are reassigned to new contractors, or when work is brought back in-house. Contracts for single events or short-term tasks are not covered, meaning only employees directly involved in the service being transferred are protected.

Broader Societal Implications

TUPE safeguards employees from losing their jobs and benefits during business transfers, ensuring job security and continuity. By upholding legal and ethical standards in business practices, TUPE reflects broader societal values placed on fair labour practices and employee rights.

By ensuring that employee rights are preserved, TUPE helps maintain stability and morale during disruptive transitions. This continuity is crucial for maintaining operations and service delivery within smooth business transitions.

Therefore, TUPE also has an economic impact. It helps maintain economic stability through preventing mass job losses and ensuring that businesses continue to operate smoothly during ownership changes. This stability benefits the broader economy by preserving consumer confidence and economic activity.

Recent Changes to TUPE

What are the key changes effective from July 2024?

• Consultation Provisions: Employers can now inform and consult directly with employees if they have fewer than 50 employees or are transferring fewer than 10 employees. Direct consultation was previously only allowed for businesses with fewer than 10 employees.
• Employee Representative Elections: Detailed guidelines now exist for the election process for employee representatives. Employers must ensure fairness and inclusivity, making sure no affected employee is unreasonably excluded from standing for election. All employees can vote for as many candidates as there are positions, and votes must be accurately counted, ideally anonymously.
• Changes to Terms and Conditions: New employers cannot change employees’ terms and conditions solely due to the transfer. Changes are permitted for ‘economic, technical, or organisational reasons’ (ETO) involving workforce changes, such as redundancies or role shifts. However, employee agreement is required for such changes.
• Trade Union and Collective Agreements: Recognition of trade unions and terms from collective agreements prior to the transfer now remain intact. After one year, new employers can renegotiate terms from collective agreements if the changes are not less favourable to employees.
• Insolvent Businesses: Adjustments have been made to employee protections if the employer is insolvent. Protections differ for when the business is closing down versus being rescued or transferred.

Involvement of Law Firms

Why are law firms involved and paying attention to the recent changes?

Because navigating TUPE regulations can be complex, requiring specialist legal advice to ensure compliance and mitigate risks. Law firms assist in conducting due diligence, ensuring all aspects of the transfer comply with TUPE regulations, and advising on legal obligations.

Pre-Transfer, law firms help employers provide necessary information to employee representatives, consult on legal obligations, and prepare for the transfer. Post-Transfer, law firms advise on maintaining compliance with TUPE regulations, managing changes in terms and conditions, and handling any legal claims arising from the transfer.

Seeking specialist legal advice is crucial to understand implications of TUPE for individual businesses and ensure all legal requirements are met. Law firms play key roles in guiding businesses through transfers, protecting both employer and employee interests.

Practical Steps for Compliance

Employers must inform trade unions or employee representatives about the transfer well in advance, including details such as the date of the transfer, reasons for the transfer, and its implications.

Employers must consult with employee representatives about any measures that will affect employees, seeking to gain agreement on these changes. For workplaces with no trade union, other employee representatives must be informed and consulted (or with employees directly if fewer than 50 employees are involved).

Failure to inform and consult can result in employees filing tribunal claims. Tribunals can award compensation up to 13 weeks’ pay per affected employee. Joint and several liability may be imposed on both the outgoing and incoming employers. Contracts governing the transfer can apportion liability, but legal obligations remain with the new employer.

Seeking specialist legal advice is essential to navigate TUPE regulations and draft effective contractual indemnities, ensuring compliance and minimising potential liabilities.

TUPE is essential for protecting employees’ rights during business transfers, ensuring job security and continuity. Compliance with TUPE is crucial for smooth business transitions and maintaining operational stability.

Bridging the Channel: What the 2024 French Legislative Elections Mean for the UK lawyers

By Carla Braquet

A general overview of the snap elections

On the eve of the European Parliamentary election results, President Macron told the French citizens that he had “decided to give [them] back the choice of our parliamentary future through vote”. The decision by the president to dissolve parliament was in response to the presidential party’s crushing defeat in the European Parliamentary elections to the right-wing populist party National Rally.

Two dates were announced to elect the new members of the parliament: the 30th of June and 7th of July. It was during these two rounds that French citizens were able to vote for Members of Parliament (MPs). By dissolving the Parliament, Macron took the risk of losing his number of MPs which stood as a majority prior to the snap elections.

During the first round of voting on the 30th of June, the National Rally came up with 33% of the vote nationwide and were projected to secure 240 seats.

However, the second round of France’s snap parliamentary elections delivered a surprising result: The left-wing New Popular Front (NFP) coalition emerged winner with 182 seats, Macron’s centrist coalition coming in second. Finally, the National Rally and its allies secured only 143 seats thereby thwarting their aspirations of forming the next government.

But then, what are the broader societal implications?

In France, the president holds significant influence on foreign policy and defence, whilst members of Parliament decide domestic policies. They vote on legislation during legislative sessions and can propose amendments and evaluate public policy. Insurance, taxes, corporate taxation, labour law, pensions: all of these are legislative issues that will be dealt with by the Parliament.

Consequently, with the NFP now holding a parliamentary majority, tradition dictates that President Macron should appoint the Prime Minister from the NFP. This would effectively grant the NFP control over the domestic agenda. This system of cohabitation could significantly reduce Macron’s prerogatives.

At stake is the potential political uncertainty arising from this result. The political landscape in France will most likely experience heightened instability affecting both domestic and international affairs.

Contributing to a possible governmental gridlock are a lack of consensus within the NFP on key questions, such as the appointment of the new PM, and Macron’s decision to delay the appointment of the new PM until after the Olympics.

A fragmented parliament will make it hard to push through a domestic agenda and weaken France’s role in the European Union. This political uncertainty is fuelling apprehension in business circles in the EU.

The French legislative elections are not just about France; they have significant implications for the EU. The composition of the Parliament directly influences France’s stance on EU reforms and economic strategies. It is essential for businesses and investors, even in the UK, to comprehend these dynamics.

Implications for Law Firms and Legal Professionals

UK law firms, especially Magic Circle firms, have been opening offices in Paris for many years underscoring the potential of Europe in strategic sectors such as technology, finance, intellectual property and other industries.

The expansion has been increased by a pro-business drive initiated by President Macron in 2017. Despite the political turmoil created by Brexit, it has not been perceived as a threat to the growth of UK law firms; rather it had further incentivised UK law firms to prioritise Europe as a key market.

However, the appointment of a Prime Minister from the NFP and the composition of the new Parliament will impact domestic policies and therefore make France more or less attractive for investors and companies depending on the choices made by the new government.

Law firms in the UK must stay vigilant to these incoming changes in this evolving landscape to ensure that they provide the best legal services to their clients.

A Parliament that adopts a more business-friendly stance could, for example, stimulate cross-border M&A activity in France, and demand for law firms’ expertise could increase, offering them a prominent role in international corporate finance.

However, many executives are worried by the left-wing coalition’s programme being contrary to the business-friendly attitude of President Macron. UK law firms with an established European office and a locally developed reputation will be essential in supporting their clients in France and across Europe in the coming months.

‘Cancel Culture’: What Does Tort Law Tell Us About Defamation?

Article by: Shiven Chudasama

‘Cancel Culture’, used to describe the current socio-cultural phenomenon that precipitates from liberal-minded young people, had set out to deplatform individuals for holding views considered inflammatory on topics such as religion, gender, race, and ethnicity.

Aided by social media, cancel culture has targeted high profile figures like celebrities and politicians who have been ostracized, boycotted, fired, and generally faced online and physical abuse and assault.

Those for the cancellation of such figures use the argument of accountability. Those against it, have criticised ‘cancel cultures’ chilling totalitarian effect, in hindering any meaningful social change.

Additionally, to this effect, ‘cancel culture’ has its boundaries. To what extent is ‘cancelling’ or deplatforming an individual, holding them accountable for their views, and to what extent is it considered defamatory under English law for distorting their actual views and statements?

I will explore here how ‘cancel culture’ and defamation may see blurred lines, where the law might enter, and which firms and organisations have actively participated in the pro- ‘cancel culture’ phenomenon as well as those against it.

Tort Law

The act of defamation fits under the legal branch of Tort Law. Tort and defamation are defined by Legal Theory Professor Raymond Wacks as ‘the wrong consists in publishing a false statement… which tends to lower him or her in the estimation of right-thinking members of the community generally’ which can lead to them being hated in ‘ridicule, or contempt’ and ‘discredit him or her in his trade or profession’.

The key words in this highlight how there must be a community that perceives itself as solely correct or moral in the face of the disagreeing party regarded as incorrect and immoral, thereby preventing the free discussion or debate of ideas.

Many a time, such cases of attempts by a community to cancel an individual and to take them to court on the grounds of discrimination or hate crimes have occurred and such cases exist today. The role of tort law within courts is to protect and compensate persons who have faced negligent or intentional harm.

In English law, more importantly, the meaning of words hold a significant importance to be considered defamatory rather than the words themselves. Thus, if someone posted on social media their Christian views which offended someone else’s societal attitudes, then they may be considered as acting defamatory under English law.

Defamation and Reputation?

How can then a case of defamation affects one’s reputation? It is one thing to attempt to alter one’s reputation by asserting blame or accusations to change one’s status in employment or personal life, but the aftermath of a defamation case has its repercussions.

Prominent cases in recent memory include Depp v. Heard (Johnny C. Depp, II v. Amber Laura Heard), a two-month long, internationally publicised case heard in 2022 in Virginia, USA. Before the case, the relationship and subsequent marriage of actors Johnny Depp and Amber Heard had been under much public scrutiny due to accusations towards Depp of physical assault and drug misuse which saw him rejected for film roles, facing backlash within the film industry as well as from the public.

However, in light of the case and the evidence put forward, public perception shifted, and Depp was regarded as a victim of defamation, whilst Heard was targeted for her false accusations and attempts to deplatform Depp. Thus, Depp v Heard became a significant example of how reputation can change in nature through the shift of public mood.

In more straightforward cases, oftentimes defamation cases taken to court result in the individual’s public humiliation, paying for expense damages, an apology, and lack of opportunities resulting in them feeling more ostracised in society.

Psychologist Dr Jordan Peterson, for instance, faced a defamation lawsuit in 2020 by the College of Psychiatrists of Ontario, on the grounds of spreading transphobic messages that do not align with clinical psychology. Similar to Depp v Heard, Peterson faced much backlash from academics, students, the University of Toronto (his employer), as well as the public. The publicised nature of the case saw Peterson receiving increasing criticism as well as support in the aftermath.

So, this brings this point of defamation and reputation back to the question of how defamation affects one’s reputation. The lines are clear when one has committed a clearly defined act that is legally defamatory. But when defamation sits on the lines of opinion and viewpoints with the aim of cancelling or deplatforming someone, the lines become blurred.

Legal Involvement

Due to the political nature of some comments and opinions, law firms and organisations have also stayed away from standing up for free speech, and often distancing from those with views that are regarded as ‘hateful’ or ‘offensive’.

Some, however, have written and taken measures to deal with such situations, such as London-based consultancy firm Schillings (which specialises in international reputation and privacy), which provides legal advice and advocacy. The ‘Schillings Approach’ focusses on these five things:

• Forensically understand the allegations
• The accused to take control of the narrative and use legal tools to investigate
• Prioritise client control and wellbeing
• Reassuring clients before being forced to ‘abandon ship’
• Re-build profiles of clients

However, most firms and organisations have typically aligned with the societal attitude to deplatforming individuals with what they consider as holding ‘inflammatory’ views, to essentially protect the reputation of their own company, in the face of being cancelled or boycotted themselves.

So, it is clear how defamation under Tort law results in a blur between cancel culture and the intent to deplatform individuals. Further to this, I have aimed to highlight the role of firms and organisations which have participated in being for or against the cancel phenomena.