The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 have now been published and will come into force on 31 January 2014. The Government has also published a guide on TUPE as amended by the new Regulations.
The new Regulations contain the same proposed changes that were included in the response to the TUPE consultation which was published at the end of last year which include the following:
- The test for a ‘service provision change’ has been clarified so that it is an express requirement that the activities carried on after the change must be ‘fundamentally or essentially the same’ as those activities carried on before it. This change reflects the current case law in this area.
- As with the old regulations, the new regulations do not prevent a variation of the contract of employment if the sole or principle reason for the change is an economic, technical or organisational reason entailing changes in the workforce, as long as the employer and employee agree the variation. Further, they will not prevent variations that are permitted under the terms of that contract.
- A change to the place where employees are employed following a transfer will 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.
- Transferees can 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.
- 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. This expressly provides 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).
- Micro businesses (being those with fewer than 10 employees) can inform and consult directly with affected employees when there is no recognised independent union or existing appropriate representatives.
- The deadline by which Employee Liability Information has to be provided to the transferee has been increased from not less than 14 days before the transfer to not less than 28 days before the transfer.
- Consultation that begins pre-transfer can 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 to this consultation.
The guidance to the new Regulations can be found here (https://www.gov.uk/government/publications/tupe-a-guide-to-the-2006-regulations). If you have any queries regarding the changes to TUPE or TUPE generally, please contact a member of the Devonshires Employment Team.