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Draft TUPE regulations published

Following consultation on reforming TUPE 2006, the Government have published the draft Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013 which are expected to come into force in January 2014, subject to certain transitional provisions (please contact a member of the Employment Team for specific advice). The key changes are as follows:

  • For pre-transfer consultation purposes, where 20 or more redundancies are proposed affecting transferring employees, a transferee can elect to consult representatives of affected employees, including transferring employees, before the transfer provided that it notifies the transferor in writing, the transferor agrees and the collective redundancy consultation requirements apply as if the transferee were already the employer.
  • A service provision change will only take place where the post-transfer activities are fundamentally the same as the activities carried out previously.
  • Any variation to a transferring employee's contract (except a permitted variation under the insolvency provisions) will be void if the reason for the variation is the transfer, but a variation will be permitted if the reason for the variation is an economic, technical or organisational reason entailing changes in the workforce* or if the reason for the variation is the transfer, but variation is permitted by the terms of the contract.
  • The restriction on varying contracts will not apply to terms which are incorporated from a collective agreement provided that: (i) the variation takes effect more than one year after the date of the transfer; and (ii) following the variation, the terms are no less favourable to the employee “when considered together” than those which applied immediately before the variation.
  • Where a contract incorporates provisions of collective agreements agreed from time to time, collective terms agreed after the date of the transfer without the transferee's involvement will not automatically transfer.
  • If the reason for a dismissal is the transfer itself, the dismissal is treated as automatically unfair, but this does not apply in respect of dismissals which may take place for economic, technical or organisational reasons entailing changes in the workforce* of either the transferor or transferee before or after a relevant transfer. This means that a dismissal will be automatically unfair only if the reason for it is the transfer itself and a reason that is ‘connected with the transfer’ will no longer, as is now the case, make dismissal automatically unfair.
  • The time limit for providing employee liability information to the transferee is increased from 14 days to 28 days.
  • Employers with fewer than 10 employees may consult affected employees directly in cases where there are no existing appropriate representatives.

* The term “changes in the workforce” will include a change of place of work within the statutory meaning of redundancy.

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