9 January 2014

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE), coming into force at the end of this month, have been described as tinkering around the edges rather than root and branch reform by a Croner employment law expert.

Stuart Chamberlain notes that the original intention to scrap the Service Provision Change definition of a transfer has been withdrawn and that many important provisions of TUPE 2006 remain as before.

He particularly highlights the standard definition of a transfer and the duty to inform and consult appropriate representatives.

"In general the amendments can be seen as business-friendly; however, some lack clarity," Mr Chamberlain continued. "This will certainly provide further opportunity for courts and tribunals to interpret the legislation."

Croner recommends that specialist legal advice should be sought to explain some of the more complex areas of TUPE and more importantly, to identify any risks for the employer.

Mr Chamberlain identifies the main changes to the legislation as including that the new employer will be able to begin consultation before any TUPE transfer in respect of employees who are likely to be made redundant after the transfer, subject to a number of conditions — mainly that the old employer agrees to the consultation.

Furthermore, activities before and after the transfer must be “fundamentally the same” to satisfy the new legal definition of a Service Provision Change.

Among other changes, there will be greater scope to change terms and conditions and avoid automatically unfair dismissals and the protection for employees only applies where the change or dismissal in question is by reason of the TUPE transfer itself (previously it was a reason connected to the transfer).

Micro-businesses (fewer than 10 employees) will be permitted to inform and consult directly with employees where there are no pre-existing employee representatives recognised.

From Paul Clarke, business writer for Croner