New TUPE Regulations published

The Government has set out new Regulations which will amend the existing TUPE regulations 2006 and collective consultation requirements in redundancies under TULRCA 1992.

The new regulations will come into force on 31st January 2014.  The Government has also published some useful guidance to accompany the new rules.

The main changes resulting from the new rules are:

  • Clarification on the "service provision change" test to clarify that the activities carried out after the change in service provider must be "fundamentally the same" as the activities carried out by the person who has ceased to carry them out.  This change reflects the current case law in this area.
  • The deadline by which the transferor must supply employee liability information to the new employer is increased from a minimum of 14 days to a minimum of 28 days before the transfer. This only affects transfers taking effect on or after 1st May 2014.
  • A change to the place where employees are employed following a transfer will fall within the scope of an economic, technical or organisational reason (ETO) entailing a change to the workforce.  This will mean a place of work redundancy following a transfer will no longer be automatically unfair.
  • Exceptions to the general restrictions on varying contracts of employment so that terms incorporated from collective agreements can be varied when more than a year has passed from the transfer, provided that the changes are no less favourable to the employee. 
  • Variations of contract are allowed where the sole or principal reason for the change is an economic, technical or organisational reason entailing changes in the workforce and both employer and employee agree the change and employers can make changes permitted by the terms of the contract.
  • A transferee will not be bound by any terms that are negotiated as part of a collective bargaining process after the transfer where the transferee is not a party to the collective agreements or part of the bargaining process.
  • Amendments to TULRCA so that new employers can start consultation about proposed collective redundancies prior to the transfer provided the transferor agrees and this will count for the purposes of the collective consultation requirements.
  • Micro businesses (those with fewer than 10 employees) will be able to inform and consult directly with employees where there are no existing appropriate representatives in relation to any transfers taking place on or after 31st July 2014.

If you require any advice or assistance on the new TUPE regulations, please do not hesitate to contact one of the Employment Law Team.

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