TUPE Update
On 5 September 2013 the Government published its response to its consultation on Reform of the Transfer of Undertakings (Protection of Employment) [“TUPE”] Regulations 2006. New TUPE Regulations are intended to be laid before parliament in December 2013. It is said they will include transitional and savings provisions providing employers with time to adapt to these changes.
The amendments that the government intends to make to the TUPE Regulations include:
- Allowing the renegotiation of terms derived from collective agreements one year after the transfer even though the reason for seeking to change them is the transfer, provided that overall the change is no less favourable to the employee
- Providing expressly for a static approach to the transfer of terms derived from collective agreements
- Allowing changes in the location of the workforce following a transfer to fall within the remit of ‘economic, technical or organisational reasons entailing changes in the workforce’ [“ETOs”], thereby preventing genuine place of work redundancies from being automatically unfair
- Amending TUPE Regulations 4 and 7 to bring them closer to the language of the Directive
- Clarifying that the correct approach, as set out in case law, is that for there to be a TUPE service provision change, the activities carried on after the change in service must be “fundamentally or essentially the same” as those carried on before it
- Allowing micro businesses to inform and consult directly affected employees when there is no recognised independent union, nor any existing appropriate representatives
- Extending the deadline by which employee liability information has to be provided to the transferee from 14 days to 28 days before the transfer
- Amending the Trade Union and Labour Relations (Consolidation) Act 1992 to make it clear in the statute that consultation by the transferee which begins pre-transfer can count for the purposes of complying with the collective redundancy rules, provided that the transferor and transferee can agree and where the transferee has carried out meaningful consultation
