Reflecting concerns over TUPE, the Government is consulting on a number of changes with a proposed implementation date in October. Of particular interest in terms of labour law are the following two proposals:
Firstly, there are proposals to limit the future applicability of terms and conditions derived from collective agreements to one year from the date of the transfer. After that point, it is proposed that transfer-related variations to those terms and conditions would be possible provided that overall the change was no less favourable to the employee. This is intended to address some of the issues raised by the Alemo-Herron case (see below).
Secondly, the Government is proposing a legislative amendment to ensure that collective redundancy consultation by the transferee, before the transfer, with representatives of transferring employees counts for the purposes of collective redundancy consultation – although there would be no requirement as such for this to take place. This reflects problems in practice where the requirement to inform and/or consult workplace representatives in relation to a transfer is triggered under both TUPE and the collective redundancy requirements in TULRCA; for example, where the transferee intends to make transfer-related redundancies, after the transfer, involving 20 or more employees at one establishment within a period of 90 days or less. Currently, questions arise as to whether redundancy consultation by the transferee can commence prior to the transfer, given that the transferee is not actually the employer at that point, or whether it can be done by the transferor, on behalf of the transferee.