The Law Society of England and Wales has published a detailed response to the government's Consultation on Proposed Changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE").
While the Law Society agreed with the majority of the government's proposals (e.g. limiting the future applicability of terms and conditions derived from collective agreements to one year from the transfer, and providing guidance on what constitutes a 'reasonable time' for the election of employee representatives), they did not share the government's views on removing the 2006 'gold plating' of TUPE.
The government had suggested that removal of the 2006 amendments relating to service provision changes would improve and simplify the regulations. On the contrary, the Law Society held that the amendments had been helpful for businesses, and their repeal would lead to legal and commercial uncertainty.
Moreover, the Law Society pointed out that taking away the 'clarifying' amendments would bring about an increase in TUPE-related claims proceeding to the Employment Tribunal. The amendments were introduced seven years ago to provide much needed clarity following a raft of confused case law. The Law Society's position is that this clarity was effectively provided by the service provision amendments (with a consequent decrease in litigation), and so to now remove them would be both 'regrettable' and costly.
Whether the Law Society's recommendations will affect the government's final decision remains to be seen, but the points raised in their response are certainly persuasive – and likely to be influential.
The Consultation closed on 11 April 2013, and the government's response is expected within 12 weeks. Any of the changes which are proceeding following the Consultation procedure will likely come into effect in October 2013.