TUPE Amendment Regulations 2013
Following consultation on changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), which we have previously reported on here, the Government has now published draft regulations to implement its proposed amendments. The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013 (“the TUPE Amendment Regulations 2013”) are expected to be laid before Parliament in December 2013, and come into force in January 2014.
The TUPE Amendment Regulations 2013 make the following changes to TUPE and collective redundancy laws:
- Redundancy / TUPE consultation – the TUPE Amendment Regulations 2013 amend the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 to allow a transferee to carry out collective redundancy consultation with all affected employees (including the transferring employees) prior to a TUPE transfer, in respect of any proposed post-transfer dismissals. This is subject to the transferor’s agreement.
- Service Provision Changes – the TUPE Amendment Regulations 2013 provide that the services which transfer must be “fundamentally the same” as the activities carried out pre-transfer.
- Post-transfer changes to terms and conditions – such changes will now only be void if the reason for the change is the transfer itself, rather than because of the transfer or for a reason connected to the transfer. The exemption to this provision remains when an economic, technical or organisational reason entailing changes in the workforce (“ETO reason”) exists. Further, a change will now also be permitted if it is because of the transfer, but the terms of the contract permit the employer to make the change. Finally, in respect of terms which are contained in a collective agreement, changes to such terms will not be void if made at least one year after the date of the transfer, and if overall the employees’ terms and conditions are no less favourable to those which applied before the variation.
‘Static’ approach to collective agreements – when it comes to terms and conditions contained within a collective agreement, only the terms in existence at the date of the transfer will be binding on the transferee, and not any post-transfer changes to those terms.
Protection against dismissal - the TUPE Amendment Regulations 2013 provide that a dismissal will only be automatically unfair (and liability passing to the transferee) if the reason for the dismissal is the transfer itself, rather than because of the transfer or for a reason connected to the transfer. The exemption to this provision remains when an ETO reason exists, and the TUPE Amendment Regulations 2013 provide that a dismissal that is for an ETO reason will, for the purposes of the Employment Rights Act 1996, be regarded as either a dismissal for redundancy (subject to satisfying the statutory definition of redundancy) or a dismissal for “some other substantial reason” justifying dismissal.
Change in workplace location - any dismissals or changes to terms and conditions arising from a change in the location of the workforce, will potentially come under the scope of an ETO reason. If an ETO reason can be established, any dismissals would not be deemed to be automatically unfair (although ordinary fairness principles would still apply), and changes to terms and conditions would not be void.
Employee Liability Information – the TUPE Amendment Regulations 2013 increase the time period within which a transferee must provide employee liability information from no less than 14 days before the transfer to no less than 28 days before the transfer.
Microbusinesses – businesses with fewer than 10 employees will be permitted to inform and consult directly with employees, rather than the current requirement to inform and consult with union or employee representatives.
The TUPE Amendment Regulations 2013 can be accessed here
If you have any questions or would like to discuss, please contact the Employment Team.