ABSTRACT
Judicial interpretation can play an integral part in balancing employers’ and employees’ concerns during relevant transfers in the UK. However, the interpretative approaches adopted by the UK courts and tribunals as a measure of balancing the tension between employment protection and corporate rescue have arguably, not been achieved this balance. This chapter analyses the judicial approaches to interpreting TUPE Provisions during relevant transfers in the UK. In particular, this chapter examines the judicial approaches to interpreting and applying regulation 7(2) of TUPE 2006 Regulations – the use of ETO exceptions to regulations 7(1) and regulation 4(4) of TUPE 2006 Regulations. The chapter also analyses the interpretation and application of regulation 4(7) of TUPE 2006- the right for an employee to object to a relevant transfer. This is to highlight the challenges that TUPE Regulations present to judges whilst addressing employers’ and employees’ concerns during relevant transfers. The chapter therefore, applies Dworkin’s Interpretative Theory of Law as a balancing tool in pursuing the policy objectives of corporate rescue on the one hand, and the policy objectives of employment protection on the other hand simultaneously.
