The long awaited response to the TUPE consultation has now been published by the Government.
The initial proposal to remove service provision changes from the operation of TUPE has now been scrapped. Instead it has been decided to amend the provisions to reflect current case law in this area. This means for there to be a service provision change, the activities carried on after the change must be ‘fundamentally or essentially the same’ as those activities carried on before it.
Whist it was originally planned to implement the changes in October 2013, the Government now intends to lay the new regulations before Parliament in December 2013. There will be transitional and savings provisions to allow a lead-in period for employers to plan future transfers in line with the new rules.
The response also sets out the other planned changes to TUPE which include:
- Allowing transferees to renegotiate terms derived from collective agreements one year after the transfer, even though the reason for seeking to change them is the transfer, provided the changes are no less favourable to the employee.
- Expressly providing for a static approach to the transfer of terms derived from collective agreements (as per the recent case of Alemo-Herron and ors –v- Parkwood Leisure Ltd). This means that a transferee will not be bound by any terms that are negotiated as part of a collective bargaining process after the relevant transfer where the transferee is not a party to those collective agreements or part of the bargaining process.
- Allowing changes to the location of the workforce following a transfer to fall within the scope of an Economic, Technical or Organisational (ETO) reason entailing changes to the workforce. This change will prevent genuine place of work redundancies from being automatically unfair.
- The provisions restricting changes to terms and giving protection against dismissal will be amended to reflect the wording of the underlying Directive and/or ECJ case law.
- Bringing forward the deadline by which Employee Liability Information has to be provided to the transferee from 14 days to 28 days before the transfer.
- Allowing consultation that begins pre-transfer to count for the purposes of complying with collective redundancy rules (under the Trade Union and Labour Relations (Consolidation) Act 1992), provided the transferor and transferee agree and the transferee had carried out meaningful consultation.
- Allowing micro businesses to inform and consult directly with affected employees when there is no recognised independent union, or any existing appropriate representatives.