Government reforms (1): TUPE changes

What do we already know?

The Government is making changes to the existing TUPE Regulations and to the connected rules on collective redundancy consultation.  The changes are aimed at simplifying the TUPE Regulations, removing ‘unfair’ legal risks faced by organisations and reducing the bureaucracy of a transfer.

We discussed the detail of these changes in our November 2013 Newsletter Government reforms (1): TUPE changes.

What is the news?

The changes come into effect on 31 January. The final amending regulations are published and available here.  They are slightly different from the draft regulations which we discussed in our November 2013 Newsletter. However, these differences are unlikely to be particularly significant in practice.

The most notable difference is in relation to transfer-related dismissals and changes to terms: the phrase “if the reason for the [variation/dismissal] is the transfer” has been amended to read “sole or principal reason”. This change is presumably intended to avoid confusion about whether the transfer must be the only reason for a variation to be void, or a dismissal to be automatically unfair.

The amending regulations take effect in stages as follows:

31 January 2014: Most of the new provisions come into force.  These include:

• minor amendment to wording of service provision changes;
• the limited relaxation of the restrictions in TUPE on changing terms and conditions and dismissal of transferred staff;
• allowing unilateral changes permitted by the employee’s contract which could have been made in the absence of a transfer (e.g. a ‘mobility’ clause);
• an ETO reason will now include changes to the location of the workforce (e.g. the incoming employer operates from a different site);
• terms derived from collective agreements will be capable of renegotiation after one year; and
• changes to the rules on collective redundancy consultation to allow a transferee to start consultation prior to the transfer.

1 May 2014: The time limit for the provision of employee liability information will be changed from 14 to 28 days prior to the transfer.

31 July 2014: An exemption from the requirement to elect employee representatives will be introduced for employers with fewer than 10 employees.  Instead, they will be able to inform and consult directly with all their staff.

These amendments will only apply to a TUPE transfer which takes place on or after the above applicable date and will not apply in respect of any transfers which take place on or before 30 January 2014.

What do we think?

For our comments on the impact on each of the individual amendments please see our November 2013 Newsletter Government reforms (1): TUPE changes. 

Given the speed with which these regulations have been brought in (the final regulations were only published on 14 January 2014) you may need some swift help! If so, please do not hesitate to contact Luke Menzies at luke@menzieslaw.co.uk / 0845 113 0154 or any other member of our team.