TUPE CHANGES THE GOVERNMENT’S RESPONSE2.01.2014
TUPE is never the most interesting topic but is one that seems to create the greatest reaction from employers and advisers alike! The Government was intent on pushing back the tide where this particular part of European legislation was concerned but as anticipated all that hot air has come to pretty much nothing. It has abandoned its headline proposal to remove the concept of service provision change, instead choosing to nibble around the edges. At the time of writing, the changes are likely to come into effect in January 2014. The following alterations are being proposed:
• In order for a change in service provider to be a relevant transfer under TUPE the activities carried on after the alleged transfer must be “fundamentally or essentially the same” as those carried on before it.
• The concept of dismissal for a reason “connected with” a TUPE transfer will be removed. Protection against dismissal will only extend to circumstances where the TUPE transfer is the reason for the dismissal.
• The variation of terms and conditions will only be prohibited where the transfer is the reason for the variation.
• Employee liability information will now need to be provided 28 days prior to the transfer rather than the previous 14.
• Redundancies arising from a change in the employee’s place of work arising on a TUPE transfer will not necessarily be automatically unfair.
• It will be possible to renegotiate terms that are derived from collective agreements 1 year after a TUPE transfer although only where the changes are no less favourable to the employee overall.
• Transferee employers will only be bound by collectively agreed terms that are in existence on the date of transfer and will not be bound by collectively agreed terms that were negotiated and adopted without their involvement after the date of transfer.
• Micro businesses (those of 10 employees or fewer) will be able to inform and consult directly with affected employees rather than having to elect employee representatives.
Many of these changes have arisen from current case law rather than ground breaking proposals.