Are you up to date with the changes in TUPE regulations? In November 2011, the Department for Business, Skills and Innovation (BIS) published a call for evidence, seeking views on the effectiveness of the current TUPE regulations. This was on the basis that it was thought that the regulations 'gold-plated' the EU Directive.
Following this call for evidence, the Government announced how the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 will change. After deciding not to go ahead with two significant changes it had previously suggested!
The changes to TUPE which will not proceed are:
- the removal of the rules regarding 'service provision changes'.
- the repeal of the transferor?s obligation to provide employee liability information.
Employment Minister, Jo Swinson confirmed that the Government intends to lay the regulation before Parliament in December 2013, she said:
By making these changes we will clear out the cobwebs in some of the rules which will give businesses more clarity about conducting transfers. As part of the Red Tape Challenge we are reforming these rules, keeping in place the necessary protections for employees and helping support a stronger economy.
Changes to TUPE that have made it through the consultation include:
- allowing renegotiation of terms agreed in collective agreement one year after transfer, provided that overall the change is no less favourable to the employee;
- allowing businesses with 10 or fewer employees to inform and consult directly with employees; and
- clarification that for TUPE to apply, the activities carried on after SPCs must be "fundamentally or essentially the same" as those carried on before them, reflecting the approach set out in the case law.
Reaction to the changes has been mixed although many businesses will welcome these changes. However the TUC have expressed their concern over the potential change that could see employers being able to renegotiate changes to collective agreements one year after the transfer.
I think that the requirement for providing employee liability information before a transfer is important. When this proposal was initially suggested, the practicalities of carrying out a TUPE transfer without this information was questioned by a number of people, including me.
BIS said last week that it planned for the changes to come into force in January 2014.
For more information on these changes, please get in touch with our employment team.