In November 2011 the Government issued a call for evidence on the effectiveness of TUPE 2006, asking for views on the regulations and whether they could be improved. The replies received have been summarised in the Government’s response which was published on 14th September 2012.
Various problems in implementing TUPE are highlighted, for example, in applying TUPE to service provision changes, harmonising terms and conditions following a transfer, and dealing simultaneously with TUPE consultation and collective redundancies. So far the Government has indicated that further consultation will definitely take place on:
- whether the service provision changes should be retained;
- whether liabilities should pass to the transferee or be held jointly and severally by the transferee and transfer or;
- whether employee liability information should have to be provided to the transferee earlier than 14 days before the transfer;
- whether to amend TUPE to provide that a change of location of the workplace following a transfer does not lead to automatically unfair dismissal ie it is capable of being an economic, technical or organisational reason entailing changes in the workforce.
However, the response also points out that the scope for change is limited due to the requirements of the European directive underlying TUPE, the complexity of the regulations, and general employment law. This means that improvements to current guidance may be more likely than changes to the TUPE regulations.