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Just a quick reminder that the new TUPE regulation 13A comes into effect in relation to transfers taking place from today.  This was introduced under the 2014 amendment regulations but for some (unknown) reason there was a six month delay in implementation.  The effect is that employers with fewer than 10 (NB, not 10 or less) employees can consult directly with those employees in relation to transfers where there are no existing appropriate representatives or a recognised union.  There is no need for an election of representatives.

Smaller employers could well find this a helpful exemption, as the rules on election can be onerous and the requirement to allow representatives can seem nonsensical when only a handful of staff are affected and individual consultation can easily take place with all affected employees.  The right to collective representation is not in theory eroded under the new rules, since an existing union or appropriate group of representatives will automatically take precedence - the new rules only apply if there is no pre-existing consultative mechanism.  Some have questioned whether it might have been preferable to extend the exemption to any transfer involving less than 10 employees - in order to catch transfers from larger employers only affecting a small group of staff, and one can see the logic in that argument.  In reality, though, in practice I have usually found that in either scenario one either offers the ability to elect and emphasises that if it isn’t taken up, consultation will take place with all affected staff in any event (and nine times out of ten, employees opt for individual consultation) - or just consults with staff anyway, dispensing with an election on the basis that it is highly unlikely ever to be taken up as an issue further down the line.

So, on that basis, I have my doubts over whether this change will make much difference in practice or whether in reality it is simply part of a bigger political drive to be seen to be stripping out red tape (whether or not that red tape actually has any utility in the first place).  The basic thrust remains that information and consultation still needs to take place, quite rightly - there is simply a greater scope for smaller employers to communicate direct with their employees without running in to technical difficulties.

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