New TUPE Regulations published

The final version of the Collective Redundancies and Transfer of Undertakings 9f  Protection of Employment (Amendment) Regulations (“CRATUPEAR 2014”) have now been published.

They can be found here:  http://www.legislation.gov.uk/uksi/2014/16/contents/made. The Government have also issued revised guidance.

I previously blogged about this when the Government published their response to the consultation last October. There are no major changes from what I flagged up then. Here is the link https://pattinsonbrewer.co.uk/the-government-publishes-its-response-to-consultation-on-tupe.

The regulations take effect in respect of all transfers occurring on or, after the 31st January 2014, except for the obligation to provide Employee Liability Information in 28 days rather than the current 14. These come into force for transfers taking place 3 months after the 31st January. The right of micro businesses (employing 10 or less employees) to consult direct with affected employees if there are no appropriate representatives come into force in respect of transfers that complete on or after 6 months after 31st January.

Changes announced in CRATUPEAR 2014 include:

• The Service Provision Change (“SPC”) introduced in the 2006 TUPE regulations will continue but, only where the new activities being carried out are “fundamentally the same as the activities carried out previously” This may narrow the occasions when the SPC applies on a retender.
• Employers are now able to count pre–transfer consultation for collective redundancy purposes if redundancies are envisaged after the transfer, but only if the current employer agrees.
• There is now an additional 14 days for current employers to provide employee liability information
• Contractual rights that transfer which are derived from collective agreements are frozen at the date of transfer. This is the static approach derived from the Alemo-Herron decision of the European Court. See my blog here https://pattinsonbrewer.co.uk/dynamic-loses-out-to-static-in-the-european-court-of-justice/
•  The dismissal of an employee under Regulation 7 of TUPE 2006 will now only be automatically unfair if the reason for the dismissal is the transfer itself rather than being connected with the transfer.
• A change in the place of employment may now be a justifiable reason for dismissal for redundancy, even where a TUPE transfer has led to the dismissal.
• Employers will be permitted to consult directly with employees in relation to a relevant transfer where there is no recognised independent union, nor any existing representatives, and fewer than 10 employees, so-called micro-businesses.

There are bound to be lots of cases testing the boundaries of the new legislation in forthcoming months.

Paul Statham