Forthcoming changes to TUPE are unveiled
12th September, 2013
In 2011 the Government announced its intention to improve how the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) works, in particular so they do not reduce the flexibility, effectiveness or fairness of the labour market. The government has now published its Response to the Consultation on TUPE.
The changes were originally intended to come into force in October 2013 but this has now been postponed and the Government intends to lay the new regulations before Parliament in December 2013. Details of the changes, as outlined in the Response are as follows:
• Allowing renegotiation of the terms agreed from collective agreements one year after transfer, provided any changes are no less favourable to employees.
• The location of a workforce can be within the scope of an economical, technical or organisational reason entailing changes in the workforce, thus preventing genuine place of work redundancies from being automatically unfair;
• Clarity that for there to be a TUPE service provision change, the service provision must be “fundamentally or essentially the same” as before the transfer;
• Allowing microbusinesses to inform and consult directly with employees; and
• Allowing TUPE consultation to satisfy collective redundancy consultation rules (in some circumstances).
It is also important to take into account the changes which are not going to be made to the regulations.
Instead of repealing the Service Provision Change (SPC) rules, the government has decided to amend the SPC rules to reflect the approach set out in case law and as outlined above. There will also be no amendment of the Regulations so as to allow a transferor to rely on a transferee’s economic, technical or organisational reasons to dismiss an employee prior to a transfer. Nor will there be an amendment of the right under Regulation 4(9) to resign in response to a ‘material detriment’ consequent on the transfer and be treated as dismissed.
For further information and advice on the new TUPE regulations or how to deal with TUPE in your company, please contact Claire Brook on 01244 405575 or send an email to [email protected].
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