The government announced this week that it had shelved plans to “sunset” thousands of EU-derived laws at the end of 2023 through the Retained EU Law (Revocation and Reform) Bill.
Business secretary Kemi Badenoch argued that the government had already ditched, changed or replaced around 1,000 EU-era laws, and that removing the 31 December deadline to get thousands more off the statute book would “lighten the regulatory burden on businesses”.
Instead, the Department for Business and Trade has said it will provide a list of laws that will be removed or reformed. It has published a policy paper, ‘Smarter regulation to grow the economy’, outlining how it will deliver a more streamlined regulatory framework.
The plans include removing EU case law that imposes requirements for employers to keep working time records; a proposal to introduce rolled-up holiday pay; and limiting non-compete clauses to three months.
TUPE
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Ensure that employees’ rights are preserved following a TUPE transfer
One aspect that will be of interest to HR teams will be changes to the Transfer of Undertakings (Protection of Employment) regulations, better known as TUPE.
What is TUPE?
TUPE transfer regulations are designed to safeguard employees’ rights when the organisation or service they work for transfers to a new employer. This transfer can occur due to a business being sold, outsourced, or when a contract for services is moved from one provider to another.
The key aim of TUPE is to ensure that when employees move to the new business, they do so under their existing terms and conditions, and that continuity of employment is preserved. Any changes to employees’ terms and conditions for a reason connected to the transfer would be deemed void unless certain conditions are met.
How will TUPE change?
The government’s policy paper states that “TUPE regulations provide important protections for employees and provide a legal framework for transfers of staff, but there are some simplifications that can be made to reduce administrative burden without changing employee rights”.
According to employment barrister Daniel Barnett, the reforms to TUPE are of “limited impact”, however.
Currently, businesses cannot consult employees directly about transfers if there are no appropriate employee representatives in place, meaning there is a requirement to elect these representatives.
The government is consulting on removing this requirement “for businesses with fewer than 50 people and transfers affecting less than 10 employees”, allowing businesses to consult directly with the affected employees.
This would mean that a business of between 10 and 49 employees, where nine or fewer are transferring to the new employer, would be exempt from the collective consultation rules. “In reality, this can only apply where there is transfer of part of a business, not a whole business,” Barnett explains.
Kate Palmer, HR advisory and consultancy director at Peninsula, said the changes might “be viewed differently by different employers”.
“Some will be happy that they don’t have to facilitate an election process, but others may be concerned about the additional time and process of consulting with each affected employee individually. It’s also unclear how this proposed law change might impact existing agreements with trade unions, as employers will likely still be expected to follow them,” she said.
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The Department for Business and Trade’s TUPE consultation runs until 7 July 2023.
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