New TUPE Regulations come into force on 31 January, with the Department for Business, Innovation and Skills issuing updated accompanying guidance.
On 31 January 2014, the regulations that will amend the UK’s Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 (the Amendment Regulations) will come into force. To accompany the Amendment Regulations, the Department for Business, Innovation and Skills issued updated guidance (the Guidance). Summarised below are the main changes and how they will they impact employers.
TUPE is the UK legislation that implements the European Acquired Rights Directive. It applies when there is a relevant business or asset transfer and when there is a “service provision change”.
The Amendment Regulations published in early January 2014—which are broadly in line with the previous draft version of the regulations—clarified the specific changes that will come into force on 31 January. Set out below are five of the changes that will have the greatest impact.
All of the changes set out above will come into effect on 31 January, except for the change to the deadline for providing ELI, which will be effective from 1 May.
Impact of the Changes
The changes to TUPE have generally been welcomed by employers as they go some way to addressing certain aspects of the regulations that have proved most challenging in the past. In particular, the increased flexibility when looking to change terms and conditions post-transfer and the mechanism for allowing pre-transfer collective redundancy consultations are viewed as positive developments.
However, the government has made it clear that a transferor cannot rely on a transferee’s ETO reason to justify a transfer-related dismissal and, in doing so, has missed an opportunity to greatly simplify the process that needs to be followed when making redundancies in the context of a business transfer and/or service provision change. By preventing such redundancy dismissals from occurring until after the transfer of employment, it remains the case that, in certain situations, it will still be necessary for the transferee to consult with its existing workforce and/or consider pooling across both sets of employees before any dismissals take effect.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
. For further details about TUPE and the rationale for the imminent changes, please see our 6 September 2013 LawFlash, “UK Government Publishes Response to Consultation on TUPE”.
. For more information on the Alemo-Herron decision, see our 19 July 2013 LawFlash, “ECJ Issues Ruling in Alemo-Herron v Parkwood Leisure Ltd”.