Revised TUPE rules

• Renegotiation of employment terms inherited from a previous employer will be allowed one year after the transfer, even if the reason for seeking to change them is the transfer itself, provided that the net effect of the change is no less favourable to the employees.
• TUPE will expressly provide for a ‘static’ approach to the transfer of terms inherited from a previous employer’s collective agreements, so that the new employer will not have to implement any subsequent improvements in the inherited terms.
• Changes in the location of the workforce following a transfer will be capable of being within the scope of an ‘economic, technical or organisational reasons entailing changes in the workforce’. This will prevent genuine ‘place of work redundancies’ from being automatically unfair.
• Regulation 7 (protection from a dismissal connected with the transfer) will be amended so that the ‘transfer itself’ has to be the ‘reason’ for the dismissal, rather than the reason just being ‘connected with’ the transfer, bringing it closer to the language of the EU Acquired Rights Directive. TUPE will be amended so that a service provision change will only come within
• TUPE if the activities carried on after the change in service provision are “fundamentally or essentially the same” as those carried on before it.
• The Trade Union and Labour Relations (Consolidation) Act 1992 will be amended to make it clear that consultation which begins pre-transfer can count for the purposes of complying with the collective redundancy consultation rules (see Fact sheet 42 – Collective redundancies), provided that the transferor and transferee can agree, and where the transferee has carried out meaningful consultation.
• Micro businesses (those with 10 or less employees) will be allowed to inform and consult on TUPE directly with affected employees if there is no recognised independent trade union or any existing appropriate representatives.
• The rules about ’employee liability information’ will be retained and the time before the transfer when the transferor must provide this information to the transferee will be extended to 28 days.
• The government will work to improve TUPE Guidance.

Draft regulations are expected to be put before Parliament next month with the intention of a short lead-in time and implementation in January 2014.