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TUPE Changes

Napthens - January 29th 2014

The Collective Redundancies and Transfer of undertakings (Protection of Employment) (Amendment) Regulations 2014 will be introduced on 31 January 2014, which will amend TUPE 2006 and TULR(C)A 1992. The main changes can be summarised as follows:

  • The rules on service provision changes will remain but the legislation will clarify that for there to be a TUPE service provision change, the activities carried on after the change in service provision must be "fundamentally or essentially the same" as those carried on before it
  • The requirement to provide employee liability information will be retained. From 1 May 2014 the information will have to be given 28 days before the transfer, rather than the current 14 days
  • There will be a static approach to the transfer of terms derived from collective agreements. Transferees will be able to change terms derived from collective agreements one year after the transfer, provided that the overall change is no less favourable to the employee
  • Changes in the location of the workforce following a transfer will be expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (ETO reason), thereby preventing genuine place of work redundancies from being automatically unfair
  • Regulation 4 (restriction on changes to terms) and regulation 7 (protection against dismissal) will more closely reflect the wording of the Acquired Rights Directive (ARD) and ECJ case law
  • Regulation 4 is amended so that any purported variation to transferring employee’s contract will be void if the reason for the variation is the transfer itself. However, a contractual variation will be permitted if the reason for the variation is an ETO or if the reason for the variation is the transfer, but the terms of the contract permit the employer to make such a variation. Parties are to be in agreement
  • The provisions in regulation 4 (9) will not be changed. This enables employees to claim that they have been dismissed where there is a substantial change in working conditions to their material detriment
  • TULRCA will be amended to clarify that consultation which begins before the transfer can count for the purposes of complying with the collective redundancy rules, provided that the transferor and transferee can agree and the transferee has carried out meaningful consultation
  • From 31 July 2014, micro-businesses will be allowed to inform and consult affected employees directly when there is no recognised independent union, nor any existing appropriate representatives