In these dark days of January, what could be more cheering than some new TUPE regulations?
As Emma-Christine mentioned in 'What is on the horizon in employment law?' the new regulations are due to come into force on 31 January, making the following changes to the law.
- TUPE will only apply to a service provision change where the services carried out after the transfer are fundamentally the same as those carried out pre-transfer;
- A change to the location of the workforce will fall within the scope of an economic, technical or organisational reason, which means that 'place of work' redundancies will no longer be automatically unfair;
- Clarification will be given that, in a TUPE context, employers may rely on existing contractual clauses allowing them to vary contracts (e.g. a mobility clause);
- Collective agreements entered into by the transferor after the transfer will not affect the rights of employees whose employment has already transferred (and therefore are not employed by the transferor at the date of the collective agreement);
- Terms incorporated into contracts by collective agreements pre-transfer may be varied once a year has passed since the transfer date, so long as the contract does not become less favourable to the employee overall as a result;
- Micro businesses (those with fewer than 10 employees) will be able to inform and consult employees directly when there is no recognised trade union or appropriate employee representative;
- Employee liability information will need to be provided by the transferor 28 days before the transfer (rather than 14 days as at present);
- Collective redundancy consultation which begins pre-transfer can be taken into account for the purposes of the statutory minimum consultation periods, so long as the transferor and transferee agree that this will be the case and the transferee still carries out meaningful consultation;
- The provisions restricting changes to terms of employment and protecting employees from dismissal will be reworded to bring them closer into line with European law.
Overall, I think that the new regulations are good news for employers. The one which I am most pleased about is (perhaps surprisingly) the provision allowing micro businesses to inform and consult employees directly. This will bring to an end the need for very small businesses to go through the motions of inviting their employees to elect a representative, rather than dealing with them directly as tends to feel most natural when only a handful of individuals are involved.
For those in search of further information about the changes, BIS has now published the imaginatively titled A guide to the 2006 TUPE Regulations (as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014) for employees, employers and representatives.