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16th January 2014

Reform of TUPE

On 13 January 2014 the final version of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 was published.

The new regulations make a number of changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA).

The key changes that the new regulations shall make are summarised below:

  • Changes in the location of the workforce following a transfer will be expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (ETO reason), thereby preventing genuine place of work redundancies from being automatically unfair.
  • The provisions relating to the restriction on an employer’s ability to change employees’ terms (regulation 4 of TUPE) and protection of employees against dismissal (regulation 7 of TUPE) will be amended. The reference to reasons “connected to the transfer” shall be removed from both regulations. Therefore going forward changes to terms and conditions will only be void and dismissals will only be automatically unfair where the reason for the change or the dismissal is the transfer itself.
  • With effect from 1 May 2014 Employee Liability Information will have to be given 28 days before the transfer, rather than the current 14 days.
  • Transferees will be able to change terms and conditions which are as a result of the transferor’s participation in a collective agreement one year after the transfer, provided that the overall change is no less favourable to the employee.
  • TULRCA will be amended so it is clear that, where a TUPE transfer occurs, collective redundancy consultation which begins before the transfer can be relied upon by the transferee, provided that meaningful consultation has been carried out.
  • From 31 July 2014, micro-businesses (those with fewer than 10 employees) will be allowed to inform and consult affected employees directly when there is no recognised independent union, nor any existing appropriate representatives.

The Department for Business Innovation and Skills has reissued its guidance in relation to Employment Rights on the Transfer of an Undertaking to reflect the changes to the law.

The BIS guidance can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/271528/bis-14-502-employment-rights-on-the-transfer-of-an-undertaking.pdf

The new regulations will come into force on 31 January 2014. Therefore subject to the transitional arrangements that are detailed above, the changes will come into effect on 31 January 2014.

For more information on any of these topics, please contact Gemma Hill gemmahill@hewitsons.com or on 01604 463309. For more information on our Employment services click here.

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