As highlighted in a previous newsletter, the Government has published its response to the consultation on reform of the TUPE Regulations. The response sets out the changes which it is hoped will improve how TUPE works. Crucially, this will not include the widely-criticised proposal to repeal the service provision rules. The detailed text of the amended TUPE Regulations is due to be published in December 2013.
In brief, the proposals include:
- Renegotiation of terms derived from collective agreements will be allowed from one year after the transfer.
- Changes in the location of a workforce following a transfer will be within the scope of an economic, technical or organisational reason entailing changes in the workforce.
- Reflecting the approach set out in the case law, TUPE will state that for there to be a service provision change, the activities carried on after the change in service provision must be "fundamentally or essentially the same" as those carried on before it.
- Consultation which begins before the transfer will count for the purposes of complying with the collective redundancy legislation.
- Micro-businesses will be able to inform and consult affected employees directly where there are no recognised union or existing appropriate representatives.
- Employee liability information must be given 28 days before the transfer (rather than 14 days).
- Following the ECJ's judgment in the case of Alemo-Herron and others v Parkwood Leisure Ltd, TUPE will provide expressly for a "static" approach to the transfer of terms derived from collective agreements. This means that a transferee will be bound by the terms of a collective agreement which apply to employees at the time of transfer, but not by any future changes to that collective agreement where the transferee was not part of the negotiating process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
