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New draft TUPE Regulations published

The Regulations are due to come into force on an unspecified date in January 2014.  The main changes are highlighted below:

  • Large scale redundancies post transfer
    If a transferee is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, they can elect to consult, or to start to consult, about the proposed dismissals before the transfer takes place.  This will only be possible where the transferor agrees to such pre-transfer consultation. This my be helpful to transferees who may be able to save time and money by consulting at an earlier stage.
  • Service Provision changes
    For there to be a service provisions change the activities carried out post transfer must be “fundamentally the same as the activities carried out previously”.   This amended wording reflects current case law and serves to narrow the scope of what amounts to a service provision change.
  • Variation to contract terms
    The current restrictions concerning variations to contracts in a situation involving a relevant transfer are amended such that contract variations are allowed when the terms of the contract permit. This allows the transferee to take advantage of the flexible terms in an employment contract which the transferor may have relied upon to effect changes, for example, a mobility clause allowing the employer to change place of work.
  • Change of definition of an ETO reason
    A dismissal because of a TUPE transfer is unfair unless the dismissal is because of an economic, technical or organisational reason entailing changes in the workforce.  The definition of ETO reason entailing changes in the workforce will be amended to encompass a change in place of work and thus a dismissal due to change of place of work could potentially be fair for dismissal.
  • Collective Agreements
    If a contract of employment incorporates provisions of collective agreements as may be agreed from time to time, rights in relation to such collective agreements which are agreed and come into force after the date of the transfer do not transfer under TUPE if the transferee is not a party to the collective bargaining for them.  This reflects current case law (Alemo-Herron v Parkwood Leisure ) and the static interpretation of collective terms.
  • Employee Liability Information (ELI)
    The usual deadline for notification of employee information under that regulation is increased from not less than 14 days before the transfer to not less than 28 days before the transfer.  This may be helpful to give the transferor more time to consider the ELI.
  • Micro Businesses
    The requirements on information and consultation are varied for businesses with under 10 employees so that they can inform and consult directly with the affected employees in cases where there are no existing appropriate representatives. 

As soon as we know more we’ll update you. In the meantime you can Read the draft regulations in full here.

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