Be ready for changes to TUPE

TUPE is an area of employment law that many companies will remain blissfully unaffected by, but if you're an employer involved in service outsourcing, mergers, acquisitions or transfers, then TUPE will be a major consideration and, potentially, a major cost.

New amending regulations affecting TUPE and collective redundancies will come into force on 31 January 2014 so here are the important points that you need to be aware of under these new regulations in order to help to protect your business.

There has been an increase in the deadline for the old employer to supply employee liability information to the new employer, from 14 to 28 days before the transfer. Whilst this is a step in the right direction, it is still unlikely to be soon enough for most transferees. There is still no obligation in law (outside of any contracts) for outgoing providers to disclose their staff information when their contracts are being re-tendered.

The relevant definition of a 'service provision change' transfer will be changed. It will now explicitly state that, for there to be a relevant transfer, the activities to be carried out by the new service provider must be fundamentally the same as those that were carried out by the person who has ceased to carry them out. This change is consistent with recent case law developments in this area.

There will also be changes to the provisions which protect employees from dismissal or from changes to their contracts of employment for reasons connected with a relevant transfer. TUPE will not prevent agreed variations of contracts if the sole or principal reason for the variation is an economic, technical or organisational reason entailing changes in the workforce. The new regulations also recognise that some variations by the transferee will be permissible under the employees' transferring contracts of employment.

It is now possible to vary the terms incorporated from collective agreements that transfer with the employees when more than a year has passed since the transfer, subject to certain conditions.

Transferees will now not be bound by the outgoing employer's post-transfer operation of collective agreements. This refers to pay and benefits etc. if the transferee is not also a participant in the collective bargaining process for that agreement or provision.

Micro-businesses will now be permitted to inform and consult employees directly when there are existing appropriate representatives. This means that these businesses will avoid the need to hold employee representative elections.

The Trade Union and Labour Relations (Consolidation) Act 1992 has been amended. A transferee may meet the requirements for collective redundancy consultation, if the transferor agrees, by consulting (or by starting to consult) representatives of transferring staff about proposed collective redundancies prior to the transfer taking place. The Taylors Employment team is expert in TUPE and managing the process to protect employers; if you would like to find out more about our services, please contact Will Clayton, Head of Employment at [email protected]