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Title: Transfer of undertakings : the tension between business rescue and employment protection in corporate insolvency
Author: Etukakpan, S. E.
Awarding Body: Nottingham Trent University
Current Institution: Nottingham Trent University
Date of Award: 2012
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Where a business becomes insolvent and its rescue is predicated on a going concern sale or transfer to another employer, there is a tension between employee protection and the rescue of insolvent but viable businesses. There is a consensus that employees deserve protection when the business that employs them becomes insolvent and is transferred to another employer on a going concern basis, yet extensive levels of employee protection can jeopardise going concern business sales by increasing the level of liabilities assumed by the purchaser. Business rescue and employee protection goals of insolvency law and employment law respectively are not inevitably incompatible. Opinions are divided, however, on the best means for achieving compatibility. This thesis uses theory to establish how the tension between these goals may be addressed. There is a perception that the European-derived provisions concerning the protection of employees’ rights, in the context of insolvent business transfers, are inimical to the rescue culture in the United Kingdom. While the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are necessary in ensuring that employees’ rights are not walked over during transfers of insolvent businesses, it is equally important that policy makers take into account the fact that the rescue and continuity of such businesses would yield a better result for the employees, in terms of job security, than would be the case if they are liquidated. Accordingly, legislation which seeks to protect the rights of employees in insolvency should first contribute to the rescue of insolvent businesses. Using theory as a tool for explanation, this research argues that it was in a bid to contribute to rescues of insolvent businesses that the Acquired Rights Directive (ARD) and TUPE were amended at the European and UK national levels. Theory helps in explaining how the changes made have struck the appropriate balance between employee protection and business rescue and offers normative justifications for these policies in the context of going concern transfers of insolvent business.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available