The Government has issued draft regulations following the consultation about TUPE earlier this year.
The snappily titled Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013 are expected to come into force in January 2014. The Regulations implement the changes put forward by the Government in their response to the consultation, specifically they:
- allow renegotiation of terms derived from collective agreements one year after the transfer, provided that overall the change is no less favourable to the employee
- remove the words 'connected to the transfer' from Reg 4(4) meaning that only changes made because of the transfer itself are now void, as long as the reason is an ETO
- allow changes to be made to the contract where the contract permits such a change, even though they are because of the transfer itself
- provide expressly for a static approach to terms transferred under collective agreements
- allow changes in the location of a workforce following a transfer to be within the scope of economic, technical or organisational reasons entailing changes in the workforce - thereby preventing genuine place of work redundancies from being automatically unfair
- reflect the approach of case law with regard to service provision changes - i.e. for there to be a service provision transfer the activities carried on after the transfer must be "fundamentally or essentially the same" as those carried on before it
- require the transferor to provide employee liability information to the transferee 28 days before the transfer (rather than the current 14)
- make clear that pre-transfer consultation with transferring employees can count for the purposes of collective consultation for redundancies provided the parties agree this
- allow micro businesses to inform and consult directly with employees where no recognised union or employee representatives are in place
Significantly, the new Regulations set out that both transferee and transferor can rely on an ETO reason to make dismissals pre or post-transfer - something which was specifically ruled out in the Government's response in September but which makes sense given the ability to count pre-transfer consultation towards collective redundancy consultation requirements.
To read the Regulations click here.