Amendments to the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 come into force today. We pick out four key points that employers may have overlooked.
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1. Redundancy dismissals where the workplace changes as a result of a transfer will no longer be automatically unfair.
A dismissal in a TUPE context will not be automatically unfair if it is for an economic, technical or organisational reason entailing changes in the workforce, even where the dismissal is because of the transfer. Under the amended TUPE Regulations, the definition of “entailing changes in the workforce” is extended to include a change in the location of the workforce.
2. The deadline for the old employer to provide the new employer with employee liability information is changing – but not quite yet.
The amended Regulations require the transferor to provide employee liability information earlier in the process. However, this provision comes into force only in relation to transfers that take place on or after 1 May 2014.
3. The transferee employer can carry out redundancy consultation with transferring employees before the transfer takes place.
The rules on collective redundancy consultation are amended so that an employer that inherits employees as a result of TUPE, and needs to make redundancies, can carry out some or all of its consultation with the transferring employees before the transfer takes place.
4. Some of the amendments might be open to challenge in Europe.
Although the Government has made amendments to the TUPE Regulations 2006, there is still some uncertainty over the extent to which employers can rely on the new rules. This area of law is governed by European legislation – specifically, the Acquired Rights Directive 2001. There is a question over whether or not some of the amendments to the TUPE Regulations comply with the Directive. Therefore, an employer relying on the amended provisions may find itself challenged by employees, with the issue ultimately being decided at the European Court of Justice.
Variation to employees’ terms and conditions in the context of a TUPE transfer is one area that may be open to challenge.