The changes implemented by the Government to the Transfer of Undertakings (Protection of Employment) (“TUPE”) Regulations 2006 are ‘much less radical than originally proposed’ according to B&ES.
The amendments introduced by Government mean that: The scope of what counts as a service provision transfer is narrowed, with the result that such a transfer is to be regarded as taking place only where the post-transfer activities are “fundamentally the same as the activities carried out by the person who has ceased to carry them out”.
The transferee (the incoming employer/service provider) may elect to carry out consultations on proposed collective redundancies with affected transferring staff before the transfer takes place, provided the transferor (the outgoing employer/service provider) agrees.
If agreed, the transferee must comply with the rules on collective redundancy consultation. The transferor may provide the transferee with information to assist them, but is not required to do so. The transferee may cancel its decision to consult pre-transfer at any time and may reverse such a decision on re-application to the transferor.
Before the recent amendments were introduced, TUpE provided protection for transferring employees against post-transfer changes to terms and conditions of employment and against dismissals where the reason for the change or the dismissal was either (a) the transfer itself or (b) a reason connected with the transfer.
The recently introduced amendments restrict these protections, so that they only apply where the reason for the change or the dismissal is the transfer itself.
While it remains to be seen how this greater flexibility will be interpreted in practice by Employment Tribunals, the Government’s changes in this regard are also intended to make clear that a change in the place of business can be regarded as an ETO reason, thus providing transferees with greater flexibility to change the location of the business after the transfer.