The TUPE January 2014 changes have been talked about for a while now. Although the regulations to amend the TUPE Regulations 2006 have yet to receive royal assent, the draft regulations have been published here.
It is anticipated that the 2014 changes to TUPE Regulations 2006 will take place later this month (January 2014).
The key changes are:
1. Collective consultation about post transfer redundancies will be able to commence pre-transfer with the transferor’s consent.
2. Reference to activities in the service provision changeover rules will be able to be read as references to activities which are fundamentally the same as the activities carried out previously. This broadly confirms the case law which has been working its way through the Courts since 2006 and leaves scope for argument about whether TUPE applies or not depending on whether the “activity” is fundamentally the same or sufficiently different to not amount to the transfer of an activity at all.
3. A change to the employee’s workplace can now be an ETO reason entailing changes in the workforce. A dismissal as a result of a change in workplace is therefore not automatically unfair, although employers must be mindful of the normal requirements for a fair redundancy dismissal still, as these continue to apply.
4. Changes to collective agreements made after a transfer that occurs on or after the date on which the new regulations take effect won’t bind the transferee.
5. Dismissals for a reason connected with the transfer are no longer automatically unfair as long as notice is given and the dismissal takes effect on or after the new regulations come into force or where no notice is given, where the dismissal takes effect on or after the new regulations come into force.
6. Employee liability information must be provided 28 days before the transfer instead of 14.
7. Where an employer with 9 employees or fewer does not have appropriate representatives in place, it can consult employees individually (currently consulting employees individually technically breaches the information and consultation requirements of TUPE). Note that this applies to employers with 9 employees or fewer, not for the number of employees transferring to be 9 or fewer. Accordingly small scale transfers by large employers will still engage collective consultation.