At the beginning of September, the government published its response to the consultation on proposed changes to the Transfer of Employment (Protection of Employment) Regulations 2006 (TUPE).
In the government’s response they outline what they have decided to change:
- Amend the TUPE Regulations to allow renegotiation of terms derived from collective agreements one year after the transfer, even though the reason for seeking to change them is the transfer, provided that overall the change is no less favourable to the employee.
- Amend TUPE to provide expressly for a static approach to the transfer of terms derived from collective agreements.
- Amend TUPE so that changes in the location of the workforce following a transfer can be within the scope of economic, technical, or organisational (ETO) reasons entailing changes in the workforce, thereby preventing genuine place of work redundancies from being automatically unfair.
- Make an amendment to reflect the approach set out in the case law, namely that for there to be a TUPE 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.
- Amend the Trade Union and Labour Relations (Consolidation) Act 1992 to make it clear in statute that consultation which begins pre-transfer can count for the purposes of complying with the collective redundancy rules, provided that the transferor and transferee can agree and where the transferee has carried out meaningful consultation.
- Improve the TUPE process for micro businesses by allowing such businesses to inform and consult directly affected employees when there is no recognised independent union, nor any existing appropriate representatives.
- Retain the rules about employee liability information and extend the time before the transfer when it must be given to the transferee to 28 days.
- Work to improve TUPE guidance.
The government also state they will not:
- Repeal the service provision change rules.
- Allow a transferor to rely on a transferee’s economic, technical or organisational reasons to dismiss an employee prior to a transfer.
It is the government’s intention to lay amending Regulations before Parliament in December 2013; therefore no changes will come into effect before January 2014.