A number of changes to TUPE either have been or are about to be implemented, primarily to improve flexibility for employers. The key changes are listed below.
- Relocations now fall within the scope of the "economic, technical or organisational reason entailing changes in the workforce" (ETO) defence. This means that it should be easier to dismiss employees because of a change in location; something which is common in outsourcing situations. This change applies to transfers taking place on or after 31 January 2014.
- The concept of a "service provision change" will remain, but the activities post-transfer must now be "fundamentally or essentially the same" as those carried out pre-transfer. This additional wording reflects recent case law and should help employers determine whether TUPE applies in each case. This change applies to transfers on or after 31 January 2014.
- Changes to terms and conditions "by reason of the transfer" can now be made, provided there is an ETO reason for the change or the contract of employment allows the employer to make the change. This applies to transfers on or after 31 January 2014.
- Employee liability information must be provided at least 28 days before the transfer (rather than 14 days as currently) for transfers on or after 1 May 2014.
- Small businesses (with fewer than 10 employees) will be allowed to inform and consult affected employees directly (rather than through representatives) for transfers on or after 31 July 2014.
The changes are not as far-reaching as originally envisaged. However, given that the changes are being introduced gradually, it will be important to check the current TUPE position whenever a transfer is proposed to which TUPE applies or may apply.