The implications of the TUPE legislation which I think date back to 1979 would seem to be massive if I understand them at all.One might think that they are one of the most important pieces of employment protection on the statute book and yet I for one rarely hear them referred to in the media at all.Thought about this because there is a re- tendering process going on where I work.I work for the client of a transport company that has suddenly gone under and no-one has a scooby whether all the drivers will be transferred with the contract -and thus be in on Monday albeit with a different employer(new holders of the contract) or whether they are gone for good?
TUPE law
started in 1981, and has been updated a few times since - it came from an EU (or maybe it was still the EEC then) directive. it's one of the bits of 'EU red tape' that the tories want to get rid of but haven't quite got round to yet.
It's all a bit fuzzy round the edges, and much of what's now considered law is a result of case law (decisions at tribunals etc) rather than what's actually written in the acts.
Generally speaking, if someone works the majority of their time (it doesn't have to be 100%) on a particular contract, then they have the right to TUPE transfer if that contract changes hands, and if something's being re-tendered, then whoever is writing the specification ought to say whether they think TUPE will apply or not, and all organisations bidding should take that in to account, and new contractor will have to talk to old contractor to try and get details of the terms + conditions that staff are on.
In practice, new contractor may not know until day one just how many people transfer across, as old contractor (if they have other suitable work) may offer continued employment (on other contracts) to existing staff, and some staff will decide now's a good time to look for a new job or retire.
If (as I think you're saying) old contractor has gone bust, then there might be a legal argument that the old contract and therefore staff employment ended at the point when they went bust, and TUPE might not apply. (if that's the case, then staff would then be entitled to claim redundancy payment via the government scheme for dealing with companies that go bust, and could of course apply for jobs with new contractor, but would be on the basis of applying for jobs on new contractor's terms.)
all of this subject to the disclaimer that i'm not lawyer, never had to handle this when i was a union rep, but i've been on the receiving end of it (outsourced 'white collar' local authority work) and had to deal with the consequences (bus operator) of having drivers on multiple terms + conditions.