Amended TUPE Regulations - Key Changes

Article

27 June, 2014

After a lengthy Government Consultation process, The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013 came into effect earlier this year. These Regulations amend the existing TUPE Regulations.

With the promise of reduced bureaucracy and increased flexibility for Employers, including Registered Providers, changes announced in the new Regulations include:

  • Service Provision Change (SPC) will continue but only where the new activities being carried out are "fundamentally the same as the activities carried out previously". This means that if a RP radically changes the way they provide services, they are unlikely to be the subject of the TUPE Regulations;
  • The dismissal of an employee under Regulation 7 of TUPE 2006 will now only be automatically unfair if the reason for the dismissal is the transfer itself;
  • Contractual changes will be permitted for economic, technical or organisational reasons involving changes in the workforce with the agreement of the employee or where a contractual right of variation exists (eg a mobility clause). Employers should tread with caution however, as the majority of contractual variations will not involve changes in the workforce (in terms of number and composition). It would therefore perhaps be safer for Registered Providers to proceed on the basis that, save for redundancy situations, contractual variations which take place because of a transfer ought to be avoided;
  • The new Employer will be able to engage in pre-redundancy consultation with employees, with the consent of the current Employer;
  • The location of a workforce can be within the scope of an economic, technical or organisational reason entailing changes in the workforce, thus preventing genuine work place redundancies from being automatically unfair;
  • Businesses will now be able to renegotiate terms and conditions in collective agreements 1 year after a transfer has taken place, provided that the overall change is no less favorable;
  • Current Employers are now obliged to provide employee liability information 28 days in advance of the date of transfer;
  • Micro Businesses (fewer than 10 employees) will be permitted to consult directly with employees in relation to a relevant transfer where there is no recognised independent union, nor any existing representatives;

It remains to be seen what the impact of these changes will be. Whilst the changes have been welcomed by Employers, they have not gone as far as originally anticipated. The TUPE Regulations remain a complex area of law, on which specialist legal advice should be taken.

If you require advice or assistance with any TUPE related issues, please contact Jonathan Holden on 01772 22002 or Jonathan Holden

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