The Government has just declared its tuppenceworth on what amendments should be made to the TUPE regulations in light of its consultation exercise. Revised draft regulations are expected in December this year.
Keen to remove any gold plating which makes the Regulations more onerous than the European Directive, the Government had originally proposed removing the service provision changes introduced in 2006. In the face of significant business and workforce opposition, the Government has now abandoned this proposal. They have accepted that the service provision change rules provide clarity and certainty and avoid inevitable disputes as to whether a service provision change amounts to the transfer of an undertaking. However they warn that the provisions may be amended to capture current judicial thinking that the activities carried on after the service provision change must remain "fundamentally or essential the same".
There has also been a u-turn on the intention to remove the requirement for the transferor to provide employee liability information to the transferee. The response to the consultation in fact suggested that more time was required to consider the information provided. The Government is now proposing that the transferor must provide the information not less than 28 days before the transfer takes place (as opposed to the current 14 days).
There was strong business opinion in favour of allowing the transferor to harmonise contracts of employment. The Government notes that however attractive, such a change cannot be made because it would be incompatible with the EU Directive.
The Government proposes to capture the European Court of Justice ruling that only collective agreements in existence at the date of transfer should bind the transferee and not those negotiated after transfer. More controversially, the Government is proposing that employment terms derived from collective agreements can be amended by agreement provided they are no less favourable overall. There is no such proposal to extend this exception to employment terms which are not derived from a collective agreement however.
The Government is proposing to tinker with protection from dismissal provisions so that they apply to a dismissal "by reason of the transfer" instead of "reasons connected with the transfer" and in the same fashion with provisions on changes to terms and conditions.
TUPE transfers can often result in a change in location for the workforce. The Government is proposing to extend the ETO exemption to include changes in location.
Despite an enthusiastic response from the business community, the Government have shied away from their suggestion that a transferor be allowed to rely upon a transferee's reasons to dismiss an employee prior to transfer. The Government have accepted that such a change would be unfair and possibly unlawful.
Micro employers (less than 10 employees) may be allowed to inform and consult affected employees directly (i.e. without election of representatives) but only where there is no recognised trade union or existing employee representatives.
That's a short summary of a 62 page proposal, but for the 'enthusiastic' amongst you, here's a link to the full proposal.