Employers face at least a five-month wait for the new Tupe regulations to
come into force.
The legislation, which protects employee terms and conditions when they are
transferred from one organisation to another, was due to be implemented on 17
July but will not now become law until December at the earliest.
John McMullen, national head of employment law for law firm Pinsent Curtis
Biddle, told Personnel Today the draft regulations, which will be subject to a
three-month consultation period, are now unlikely to be produced until
McMullen, who advises the CBI on Tupe, said the current UK regulations need
to be changed because they are based on the Acquired Rights Directive of 1977,
which was overwritten by a new EU directive on Tupe in 1998.
"The EU directive was implemented in June 1998 but has no legal force
in individual counties until those countries produce their own regulations.
"The directive itself is not very radical. The main question is where
Tupe applies. It could be decided by EU case law that we already have or member
states can go further than the directive requires, providing they are looking
after employee rights."
McMullen said one of the issues holding up the new regulations was pensions.
He explained, "At the moment pension rights are excluded from Tupe. The
directive itself does not require member states to alter that but it does allow
member states to allow pension transfers if they want.
"This is going to appear in the consultation document. As an issue it
has huge ramifications for small contractors.
Robbie Gilbert, chief executive of the Employers’ Forum on Statute and
Practice, said he hoped the new delay to the Tupe regulations meant more time
was being spent resolving difficult issues such as pensions.
"I hope the extra time is being used to tackle these troublesome points
but I am afraid I have no confidence that this will be the case," he said.
By Ben Willmott