The ‘Transfer of Undertakings (Protection of Employment) Regulations 2006’ (TUPE) have been amended.
On the sale or transfer of some businesses or in the event of a change of some service providers TUPE may apply. As a consequence the employees who were assigned to the transferred business automatically transfer to the new business on the same terms and conditions of employment.
The new Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (unattractively shortened to CRATUPEAR) amend the previous legal position as follows:
- Where a business is transferred, redundancies that occur following a change in the location of the workforce after the transfer are no longer automatically unfair. This assists the transferee/new employer where there is a genuine place of work redundancy. However the dismissals could still be unfair if a fair process is not followed.
- Helpfully for transferees, collective consultation for redundancies (required where over 20 employees are at risk of redundancy in a 90 day period) may be started by the transferor before the transfer and that period of consultation counts for the purposes of complying with the collective redundancy rules. This is subject to the transferor and transferee agreeing to such consultation and the transferee continuing to consult meaningfully after the transfer.
- Activities carried on after a ‘change in service’ provision (commonly applicable on outsourcings) must be ‘fundamentally or essentially the same’ as those carried on before if they are to fall within the new legislation and be treated as a “relevant transfer”.
- The transferor must now provide certain employee information to the transferee at least 28 days before the transfer (which is an improvement from the previous short 14 day period).
- Transferees/the new employer may be able to amend terms in collective agreements during the period of one year after the transfer, provided that the overall change is no less favourable to the affected employee.
- Following recent ECJ decisions there will be a ‘static’ approach to the terms and conditions of employees who were covered by collective agreements when they were employed by the transferor. This means the transferee will not be bound by any changes to collective agreements which take place after the transfer date so long as the transferee is not itself a party to those collective agreements.
- From 31 July 2014, small businesses with less than 10 employees will be allowed to inform and consult its affected employees directly if there are no recognised union or existing appropriate representatives.
Commentary
The changes are sensible and some of the changes (such as joint consultation and consulting directly with employees) reflect the commercial situation followed by many employers to date. For many practitioners and businesses the changes do not go far enough and they are a watered-down version of the original proposals.
It is therefore unusual that Ed Miliband has recently supported a parliamentary motion to repeal CRATUPEAR in its entirety.
Whilst the motion (called an ‘Early Day Motion’) is rarely successful it provides an indication of the leader of the Labour party’s view on the new law and the possible consequences if Labour wins next year’s general election. With three former employment lawyers currently in the shadow cabinet, the UK may see major changes afoot if the political landscape changes in 2015.
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