As mentioned briefly in last week's newsletter, the Government's latest package of employment law reforms includes a published response to the TUPE Call for Evidence undertaken earlier this year.  There will be consultation by the end of the year on potential changes to TUPE and to the official guidance.

Consultation is promised on the following specific issues:

  • whether the outsourcing ("service provision change") provisions should be retained
  • employment-related liabilities: should they continue to pass to the transferee, as now, or could they be shared between transferor and transferee?
  • a proposal that information about employee liabilities should be given to the transferee at an earlier stage than the current 14 day rule
  • a possible amendment to allow a change of workplace location following a transfer to be an "economic, technical or organisational reason entailing changes in the workforce" (ETO reason); as a result, a dismissal for refusing to accept such a change would not be automatically unfair.

The response does have a somewhat defeatist feel to it, pointing out more than once that the scope for change is limited by the requirements of the European Directive from which the TUPE regulations derive (whilst at the same time noting the problems caused in cross-border negotiations by the differences in implementation of the Directive across Europe).  The Government clearly recognises how difficult it can be for an employer to harmonise terms and conditions of employment following a TUPE transfer, but apart from the very specific proposal on change of location, does not show an appetite for tackling the wider issues.  These were highlighted by a case we featured earlier this month, The Manchester College v Hazel.

The response concludes by suggesting that improving the guidance on TUPE "might suffice" instead of amendments to the regulations themselves, so we can at least expect to see more detailed guidance on issues such as the assignment of employees to the transferring group and how TUPE operates on insolvency.