New-look TUPE

The Government has published proposals for changing TUPE 2006, following on from its consultation in November 2011.  The Government plans to remove the service provision changes from TUPE, accepting there needs to be a lead-in time for its removal.  Understandably, this would be a major change however the justification for it is that the provision does more than the relevant EU Directive requires.

The consultation also proposes removing the requirement to provide transferee employers with employee liability information, although it will still be necessary to provide relevant information for consultation purposes.  Currently, the list of information is significant and can be a time consuming part of the transfer process.

Other changes include:

  • amending the ETO (economic, technical or organisational) reason so that dismissals arising from a change in the place of work following a transfer would not be automatically unfair;
  • reviewing consultation rules, so that pre-transfer consultations with transferring employees count towards employer consultation obligations relating to redundancies;
  • permitting micro businesses to consult directly with employees rather than through representatives;
  • restricting the application of collective agreements to a maximum of one year after the transfer;
  • reviewing the rules relating to substantial changes to working conditions, contract changes and protection against dismissal so that they fit more closely with the EU Directive; and
  • considering whether a transferor should be able to rely on a transferee’s ETO reason in relation to pre-transfer dismissals.

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