Today the Government has published its consultation on proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006. The consultation is wide ranging and suggests that there will be a radical reform of TUPE.
The consultation seeks views on:
- repealing the 2006 amendments relating to service provision changes;
- repealing the specific requirements regarding the notification of Employee Liability Information (but making it clear that the transferor should disclose information to the transferee where it is necessary for the transferee and transferor to perform their duties regarding information and consultation);
- changing the wording on the provisions restricting changes to contracts of employment, the provisions giving protection against dismissal and the provisions concerning a substantial change in working conditions to the material detriment of the employee to reflect more closely the wording of the Acquired Rights Directive and where appropriate the case law of the Court of Justice of the EU;
- amending the meaning of “entailing changes in the workforce” so that it can cover changes in location, thereby aligning the meaning of ETO reason with the definition of redundancy;
- amending the wording so that consultation by the transferee on collective redundancies with staff who are due to transfer counts for the purposes of the obligation to consult on collective redundancies;
- including micro businesses within the scope of the proposed amendments but allowing them to inform and consult employees directly regarding transfers rather than through representatives in cases where there is neither a recognised union nor existing representatives;
- limiting the future applicability of terms and conditions derived from collective agreements to one year from the transfer; and
- whether a transferor should be able to rely upon the transferee’s economic, technical or organisational reason(s) entailing changes in the workforce in respect of pre-transfer dismissals.
Although this is a consultation (which closes on 11th April) it is clear that the Government will be making significant changes to TUPE. It does not however intend to make changes to the TUPE insolvency provisions or changes to joint and several liability. There is a lot to digest but changes will not be immediate and for the time being employers should continue to apply TUPE in its current form. There is no timetable for any changes at present but the consultation hints that changes may take place in stages with a longer lead-in period (potentially 5 years or more) prior to any repeal or other change in the service change provisions.
To access the Consultation please click here.