Proposed TUPE reforms

The most far-reaching proposal is to repeal the rules that put most ‘service provision changes’, such as contract catering, cleaning and security, within the scope of the regulations. Although this might seem like good news for businesses, removing the certainty that the transfer of a service provision is generally a ‘TUPE transfer’ only puts the TUPE rules back to the pre-2006 position, where such a transfer might or might not be a TUPE transfer.

The government also proposes to remove the ‘gold plating’ from many of the rules, so that they more closely reflect the wording of the EU Acquired Rights Directive and European case law. These stripped-down rules will cover the provisions restricting changes to contracts, the provisions giving protection against dismissal, and the provisions concerning a substantial change in working conditions. Other proposals include removing the prescriptive requirements regarding the notification of ‘employee liability information’, and amending the rules so that a dismissal involving a ‘place of work’ redundancy can be capable of being a fair dismissal.

If the proposals go ahead, the ‘duty to inform and consult’ rules will be amended to ensure that consultations by the transferee on collective redundancies with those who are due to transfer will count for the purpose of the obligation to consult on collective redundancies.

For businesses with fewer than 10 employees and with no recognised trade union or existing employee representatives, the proposals will allow them to inform and consult employees directly regarding transfers, rather than first having to make arrangements to elect representatives.

Consultation closes on 11 April 2013, and the consultation paper is available on the www.gov.uk website.