Changes to the TUPE Regulations

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Changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) regulations are now likely to come into force in January 2014. The proposed amendments include the following: The TUPE legislation was amended in 2006 to bring most service provision changes (i.e. outsourcing, in-sourcing and retendering) within the scope of the Regulations. The proposal is to reverse this change. The transferor will no longer have to provide employee liability information. However, the transferor should disclose information to the transferee where it is necessary for purposes of information and consultation. There will be an easing of the restriction on post-transfer changes to employment contracts; however, there is still protection against dismissal and substantial change in working conditions to the material detriment of the employee. Dismissal will be allowed due to an “economic, technical or organisational reason entailing changes in the workforce” (ETO reason). Currently, the meaning of “changes in the workforce” is limited to changes to the number of employees or the functions they carry out. The ETO reason will be more like that of redundancy, so that dismissals arising from a change in the place of work following a transfer will not be automatically unfair. Pre-transfer consultations by the transferee with staff that are due to transfer will count for the purpose of the transferee’s obligation to consult on collective redundancies. Micro businesses will be able to inform and consult employees directly regarding transfers, rather than through representatives, where there is neither a recognised union nor existing representatives.

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