TUPE - all change?
Employment law solicitor Hazel Phillips explains the Government's proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The present Government is very keen on trying to reduce the legislative burden on employers. A consultation programme in 2011 highlighted that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) were one of the biggest areas of concern for employers. Further consultation began in January of this year to collect views on how TUPE could be amended. That consultation closed at the end of April and earlier this month (September 2013) the Government published its formal response.
The main ways in which the Government is looking to change TUPE requirements going forward are to:-
- allow the renegotiation of terms which employers inherit under transferred collective agreements one year after transfer, provided any changes which are made to those terms are no less favourable to employees
- clarify that a change of the location of a workforce following a TUPE transfer will be within the scope of an economic, technical or organisational reason entailing changes in the workforce, preventing genuine place of work redundancies after a TUPE transfer from being automatically unfair
- clarify that for there to be a TUPE service provision change, the service after the TUPE transfer must be "fundamentally or essentially the same" as before the transfer
- allow employers who employee 10 people or less to inform and consult about a transfer directly with employees unless there is a recognised trade union in place
- allow employers to consult prior to the transfer about possible collective redundancies that might arise after a TUPE transfer.
- change the deadline from 14 days to 28 days before the transfer for the provision of the employee liability information.
There had been much discussion about whether the Government would use this opportunity to remove 'service provision changes' from the scope of TUPE. However, the recently published response makes it clear that this will not happen.
What is still under debate though is whether a change to the circumstances in which changes to terms and conditions of employment after a TUPE transfer can be made. The consultation response mentions the possibility of prohibiting only changes which are related to the transfer itself (rather than anything connected to the transfer) but the response acknowledges that there is still some work to be done before a final decision on the wording of any new provisions can be made.
At the moment, there is no certainty about when the changes highlighted above might come into effect. January 2014 has been mentioned as a possibility but we will have to wait until later in the year to see if that kind of timescale is realistic. Even then, the most useful changes are likely to be the changes to the consultation requirements both for smaller employers (who will see a much simpler system introduced) and those allowing collective consultation to begin before the transfer rather than having to wait until afterwards.
It remains to be seen whether these changes will be significant enough to achieve the Governments stated aim of reducing the burden of TUPE on employers but it seems to be a good start.
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Published: Wednesday 11th September 2013