TUPE amendments will water down rights
Labour & European Law Review Weekly Issue 336 10 September 2013
Thompsons Solicitors is warning the government’s response to a consultation on amending the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) will water down employees’ rights.
Although the government accepted arguments made by Thompsons and others on some issues, it is going ahead with plans to implement other changes, which include the following:
- Amendment to the definition of Service Provision Changes - the services will have to be “fundamentally or essentially the same” for TUPE to apply
- Renegotiation of terms derived from collective agreements will be allowed one year after the transfer which isn’t the case now
- The “static approach” to terms derived from collective agreements is to be applied meaning that only collectively bargained pay awards in force at the time of transfer will apply post transfer
- Change of the location of the workplace will be a potentially fair dismissal
- Pre transfer consultation will count for post transfer collective redundancies
- TUPE to be relaxed for micro businesses
- Employee Liability Information to be provided 28 days before the transfer (rather than currently 14)
The three areas on which the government made concessions were:
- “Service Provision Changes” are to be retained within the scope of TUPE
- Outgoing employers will still not be able to rely on an incoming employer’s economic, technical or organisational reasons to dismiss an employee prior to a transfer
- The right to resign in response to a “material detriment” caused by a transfer is to be retained.
The government says it intends to lay new regulations before parliament in December, to come into force in January 2014.
The TUPE regulations protect employees' terms and conditions of employment when a business transfers from one undertaking to another. Employees who transfer over automatically become employees of the new employer on the same terms and conditions.
Richard Arthur of Thompsons Solicitors said: “Although the government was persuaded to drop some of its wilder proposals in its original consultation document, these changes do not augur well for employees. Allowing employers to re-negotiate changes to terms derived from collective agreements just one year after the transfer is likely to result in lower pay and poorer conditions. Overall these changes will result in a reduction of employees’ rights”.
To read the response in full, go to: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/236932/bis-13-1023-transfer-of-undertakings-protection-of-employment-regulations-2006-government-response-to-consultation.pdf
To read Thompsons’ response to the consultation, go to: http://www.thompsonstradeunionlaw.co.uk/information-and-resources/thompsons-response-bis-tupe-regulations.htm