TUPE consultation

The government has published its long awaited consultation on changes to the TUPE regulations 2006. The consultation follows the Call for Evidence last year.

The consultation is available on the Government website.

The closing date for responses is 11 April 2013. The main proposals include:

• Repealing the inclusion of “Service Provision Changes” which are not otherwise covered by TUPE;
• Repealing the requirement for transferors to provide Employee Liability Information;
• Amending Regulation 13 to make clear that the transferor should disclose information to the transferee where necessary for both to perform their information and consultation duties;
• Amending the restrictions on changes to terms and conditions: although variations by reason of the transfer would still be void, that would not prevent an agreed variation where either: (i) there could have been such an agreed variation had there not been a transfer; or (ii)  the reason for the variation is an “economic, technical or organisational reason entailing changes in the workforce”;
• Limiting the future application of terms and conditions derived from collective agreements to one year from the date of the transfer;

• Removing from protection dismissals which are not “by reason of the transfer”, but which are for a reason “connected” with the transfer that is not an ETO reason;
• Restricting the ability to treat the contract as terminated where there is a substantial change in working conditions to the employee’s detriment  to situations where there is a repudiatory breach of contract and (probably) limit the circumstances in which the dismissal will be treated as unfair;
• Permitting pre-transfer consultation by the transferee to count for the purpose of collective redundancy consultation;
• Providing guidance on what a “reasonable time” is for electing employee representatives (and asking what is a “reasonable time”?);
• Permitting “micro businesses” to inform and consult with affected employees direct where there is no recognised union or existing employee representatives;

Richard Arthur, head of trade union law at Thompsons said: “We believe these proposals are seriously flawed and will be examining them in detail because, in some cases, they may be in breach of the United Kingdom’s obligations under the Acquired Rights Directive.”