The Coalition Government has announced that the changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), originally expected this autumn, will not now be in force until January 2014, subject to transitional provisions giving lead-in periods for the changes. Regulations will be placed before parliament in December 2013. Watch this space for further developments.
With the publication of the Government’s Response to its Consultation on TUPE we now have a much better idea of what the changes are likely to be.
One significant proposal has been dropped, to the relief of many. The unpopular proposal was that ‘service provision changes’ (SPCs) such as outsourced cleaning or other contracted out services, should no longer be a relevant transfer set out in the TUPE regulations. However 67% of the 178 consultation responses objected, as it was felt that the current rules with the specific SPC provisions provided clarity.
Instead the Government will refine the TUPE definition of SPCs to reflect case law i.e. that the activities carried out after the change in service provision must be ‘fundamentally or essentially the same’ as those carried on before.
The other main changes are:
• Employee Liability Information will be provided by the current employer to the new employer, no later than 28 days pre transfer (currently this is provided no later than 14 days pre transfer).
• Micro – employers with 10 or fewer employees, will be able to consult affected employees directly rather than via elected representatives, unless such representatives are already in place.
• In certain situations pre transfer, where the current and new employers agree, the new employer can commence collective redundancy consultation where there are 20 or more likely dismissals post transfer. This is supported by businesses, as it will remove the need for separate consultation processes on the TUPE transfer and then on potential redundancies.
• That genuine change in place of work redundancies will not be automatically unfair.
• Allowing renegotiation of terms in collective agreements one year after transfer, provided any changes are no less favourable to employees