30 Jan 2014

EXTRA! EXTRA! TUPE changes in force today!

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Employment alert email

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 come into force today.

Effective immediately, for TUPE transfers occurring from 31 January 2014:

  • If transferors consent, transferees can start collective redundancy consultation with transferring employees pre-transfer.
  • Contractual variations or dismissals are generally void or automatically unfair if the "sole or principal reason" for them is a TUPE transfer, unless there is an ETO reason. The old "reason connected with the transfer" wording has gone.
  • A change of workplace is now an ETO reason (but usual rules still apply on the reasonableness of the move etc).
  • Variations to terms and conditions can also be valid if they are permitted under the pre-transfer employment contract (for example, express variation clauses that are operated fairly/reasonably); but substantive changes to working conditions can still trigger constructive dismissal claims if they are materially detrimental.
  • Variations to terms and conditions incorporated into contracts by collective agreements are also permitted if they take effect one year after the transfer, are agreed and "when considered together" employees' rights and obligations in their contracts are no less favourable to them.
  • Terms incorporated into employment contracts by collective agreements are static and do not vary post-transfer if the transferee is not involved in the post-transfer collective bargaining.
  • For there to be a service provision change under TUPE, the post-transfer activities must be "fundamentally the same" as those carried out pre-transfer.

Future changes - for TUPE transfers occurring:

  • from 1 May 2014 - transferees must provide employee liability information 28 days (not 14) before the transfer; and
  • from 31 July 2014 - micro-businesses with <10 employees, no union and no existing employee representatives can consult with employees directly.

Our TUPE experts are standing by to take your questions on the impact these changes are likely to have in practice.

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Paul Reeves
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