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Changes to the TUPE Regulations will come into effect from 31 January 2014

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Information about Changes to the TUPE Regulations will come into effect from 31 January 2014
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Published on February 20, 2014

Author: ibbsolicitorsuk

Source: slideshare.net

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For more information on employment law updates visit
http://www.ibblaw.co.uk/services/employment
Changes to the TUPE Regulations will come into effect from 31 January 2014. Erica Humphrey, solicitor in the employment team at IBB Solicitors summarises
the main amendments. The 2014 Regulations amend the 2006 Regulations in their application in Great Britain, and apply: (a) when a business or undertaking, or part
of one, is transferred to a new employer; or (b) when a ‘service provision change’ takes place (for example, where a contractor takes on a contract to provide a service for a
client from another contractor). The Government’s consultation originally proposed to remove the application of TUPE from service provision changes, however it has
been confirmed that TUPE will continue to apply to traditional business transfers and service provision changes.
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IBB SOLICITORS EMPLOYMENT TEAM Briefing Changes to the TUPE Regulations will come into effect from 31 January 2014. Erica Humphrey, solicitor in the employment team at IBB Solicitors summarises the main amendments. The 2014 Regulations amend the 2006 Regulations in their application in Great Britain, and apply: (a) when a business or undertaking, or part of one, is transferred to a new employer; or (b) when a ‘service provision change’ takes place (for example, where a contractor takes on a contract to provide a service for a client from another contractor). The Government’s consultation originally proposed to remove the application of TUPE from service provision changes, however it has been confirmed that TUPE will continue to apply to traditional business transfers and service provision changes. Amendments to the TUPE 2006 Regulations Amendment Comments • • Collective redundancies Transferee (incoming employer) may elect to consult representatives of transferring staff about • proposed collective redundancies prior to the transfer • (provided that transferor (outgoing employer) gives permission) • • • Change in work location Relocation can be a “change in the workforce” Greater flexibility to change terms and conditions by reason of the transfer (but limited in practice) Contracts can be varied if: 1. There is an ETO reason for the change; 2. The contract of employment allows the employer to make the change • • • • Allows redundancy consultation prior to transfer to count towards 30/45 day redundancy consultation Greater freedom to finalise dismissals shortly after the transfer (nb: individual consultation must still take place after the transfer because the transferee must rely on own ETO reason) Transferee “elects” to consult representatives in writing and requests agreement from transferor Agreement from transferor is necessary in order for transferee to consult with transferring employees No obligation on transferor to assist transferee May require review of service contracts to include obligations on transferor to permit collective consultation prior to transfer and obligation to provide transferee access to the workforce to collectively consult Previously unclear whether change in location was an ETO reason entailing “changes in the workforce” – therefore potential automatic unfair dismissal However, TUPE will now include provisions so that changes to an employee’s place of work can amount to an ETO reason entailing “changes in the workforce” (even where numbers of workforce do not change) Previously any change would be void if the reason for the change is:  For reason of the transfer itself; or  A reason connected with the transfer Makes changes less open to legal challenge although still better to leave passage of time between the transfer and the change Distinction between “the transfer itself ” and “a reason connected with the transfer” is not clear This briefing note is only intended to provide general guidance and is not intended to constitute legal advice.

IBB SOLICITORS EMPLOYMENT TEAM Amendments to the TUPE 2006 Regulations Amendment Comments • Greater flexibility to dismiss (but limited in practice) • No automatic unfair dismissal where dismissal is for a reason connected with the transfer Only dismissals that are by “reason of the transfer” itself will be automatically unfair However, as above, distinction between “the transfer itself ” and “a reason connected with the transfer” is not clear. It remains unknown how the distinction will be interpreted by Tribunals/Courts Employee Liability Information [NB: applies to transfers which take place on or after 1 May 2014] Employee liability information to be provided not less than 28 days before transfer Previously required to be provided no less than 14 days before transfer Failure to do so can give rise to claim for no less than £500 for each employee Actual information required to be provided remains unchanged • • • Terms derived from Collective Agreements (those agreed with Trade Unions) Terms derived from Collective Agreements can • be changed provided that: 1. They are varied one year after the transfer; and • 2. After the change, the contract terms overall are ‘no less favourable’ to the employee than before the change Service provision change Service provision change, activities before and after must be “fundamentally the same” Micro businesses [NB: applies to transfers which take place on or after 31 July 2014] Micro businesses can consult directly with employees Transferees have greater flexibility to agree direct with employees mutually beneficial improvements in terms It remains to be seen how “no less favourable” will be interpreted • Clarifies case law on this point therefore no real practical change • Businesses with fewer than 10 employees can consult direct with employees (rather than employee representatives) To discuss issues raised by this note, please contact: Erica Humphrey Solicitor, employment team 01895 207262 erica.humphrey@ibblaw.co.uk 08456 381381 ibblaw.co.uk

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