Government publishes TUPE Regulations

The Government has published draft legislation that will make changes to the TUPE Regulations in January 2014.

In September 2013, the Government published its response to the consultation on the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE), which outlined planned changes to TUPE. Its objective was to reverse "unnecessary gold-plating" of the Acquired Rights Directive (2001/23/EC), in that TUPE went beyond what was required to transpose the Directive into national law. The text of the amending Regulations has now been published in draft.

While the changes do not go as far as proposed in the consultation, there are some significant changes to the TUPE framework:

  • There are amendments to how collective agreements are dealt with post transfer to reduce the burden on employers.
  • An economic, technical or organisation reason entailing changes in the workforce for the purpose of the dismissal of an employee or a variation of a contract of employment will include a change in location.
  • The transferee will be able to include pre-transfer consultation with transferring employees as part of its obligation to inform and consult in a redundancy exercise, provided that certain conditions are met.
  • The time period for the transferor to provide employee liability information to the transferee is extended to not less than 28 days before the transfer.
  • Micro businesses (organisations with fewer than 10 employees) will be able to inform and consult directly with affected employees in certain cases.
  • For a service provision change, the activities carried on after the change must be fundamentally the same as those carried on before the transfer.

Although the exact commencement date of the Regulations is not yet known, they are expected to come into force during January 2014. Transitional provisions will apply.