The government has now clarified its proposed amendments to TUPE and has published The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013.

The changes to the legislation on TUPE and the law on collective redundancies will make it easier and fairer for employers and staff in a business which is changing ownership.

Employees may be protected under TUPE when a business changes owner, and ensures employees don’t unfairly lose out when a transfer takes place.

The key changes include:

  • Allowing transferees to renegotiate terms derived from collective agreements one year after the transfer on the basis that the changes are no less favourable to the employee;
  • Permitting changes to workforces location following a transfer to amount to an economic, technical or organisational reason entailing changes in the workforce;
  • An amendment to the definition of service provision change and further, the service provision change rules will only apply where the activities carried out by the new contract are “fundamentally or essentially the same as those carried on before it”;
  • Allowing micro businesses (those with 10 or fewer employees) to inform and consult with their employees directly where there is no existing trade union or appropriate representatives.  TUPE information can be given to the employees individually and consultation can take place directly with the employees;
  • Increasing the time limit for providing employee liability information to the transferee from 14 days to 28 days prior to the transfer; and
  • A variation to a contract will not be automatically void even if the reason for the variation is the transfer itself if “the terms of the contract permit the employer to make such a variation”.  Therefore where there is an express right to vary the contract, TUPE will not prevent such amendments.

Donna Martin, a solicitor in the employment team at London and Surrey-based solicitors Mackrell Turner Garrett, said: “The exact implementation date is unknown however, we are expecting them to come into force in January 2014.

“The majority of the amendments will apply to transfers occurring on or after the date of implementation however, a transitional period will apply to the time limit in relation to providing employee liability information and changes to the informing and consulting process for micro business.

“While these changes will make the TUPE process easier and fairer, there are still many practical issues that will need to be addressed.

“For example issues such as redundancies among transferred staff will need to be carefully considered and decisions made with objective and relevant documents that will back up their decisions.

“And while many uncertainties have been ironed out, such as the consultation of staff at an earlier stage, this area of law is still complex and employers and employees should consult relevant employment law experts who can assist with the process.”

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