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New TUPE - What's Happening in 2014

9th January 2014

There were so many changes in employment law and procedure last year, that you’d be forgiven for thinking that the Government would give us a break for a while. But no, the next changes are due to take place in January.

With the aim of “reforming employment laws so that they support the flexibility and effectiveness in our labour market”, the Government had proposed a raft of amendments to “remove unnecessary gold-plating to the TUPE Regulations”. Following a consultation exercise last year, amendments to the TUPE Regulations coming into force on 31 January 2014 include –

  • Allowing renegotiation of terms derived from collective agreements one year after transfer, provided that the overall change is no less favourable to the employee – we can see some arguments here as to what might or might not be less favourable
  • Bringing changes in location of the workforce within the scope of an ETO reason entailing changes in the workforce – this will prevent genuine place of work redundancies from being automatically unfair
  • Allowing pre-transfer meaningful consultation by a transferee to count as part of the collective consultation required for a post-transfer redundancy exercise – but only if the transferor agrees, so a requirement for agreement should be built in by a client to all their outsourcing agreements
  • Allowing employers of less than ten employees (who do not recognise any trade union or have any existing appropriate representatives) to consult directly with their staff – thus avoiding unnecessary employee elections

Having decided that the rules relating to “service provision changes” in the TUPE Regulations are “an example of where good Regulation, that is additional to that required by a European Directive, can deliver benefits for both individual and businesses”, the Government has decided not to follow through on its original proposal to repeal them. The certainty for the labour market provided by these rules outweighed the desire of the Government to be rid of all gold-plating, although it has emphasised that the rules will only apply where the activities carried on after the transfer are “fundamentally or essentially the same”.

We deal with all aspects of the TUPE Regulations on a regular basis, so please contact us if you need some guidance on the amended rules. Just please don’t call them “toop” or “toupee”!

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2014.

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