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.
How to comply with the law on dismissal of employees in relation to TUPE transfers.
4. Some of the amendments might be open to challenge in Europe.
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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.
6 comments
Hi
My firm is moving offices across London (not far) very soon. The Office Manager wants to employ a new cleaning company as we have been unhappy with the level of service we have had from the cleaner the current company send to us. They have sent the same guy for a long time but we have not complained about him recently as we thought we would not have to put up with his poor cleaning for much longer. We are letting the current company quote for our new premises but don’t think they are up to it. They have now told us that we have to TUPE this cleaner over to any new company we hire to do our cleaning if he wants to go. Surely that isn’t correct?
As a cleaning contractor my input would be is this man not worth a chance with a better cleaning company? Perhaps he is unhappy himself ? We have taken on countless staff members this way some work out some don’t.
I would doubt that this would fall under TUPE, but in any event, that would be an issue to be resolved between the outgoing company and the incoming company. The only way that you, as the client, could be directly involved in a TUPE would be if you decided to bring the cleaning services in-house. If you have concerns over the individuals performance, you really should be highlighting this back to his employer, possible even insisting that they change the person doing the job.
This would fall under Tupe….Individuals performances have no relevance as to whether that person should be Tupe’d over or not, they are a factor to be dealt with seperately. In addition should the client wish to take the cleaning inhouse, then they could of course do that, but they would have to take the existing cleaner on and the employment liability. The client could not insist that the cleaner was changed and expect the outgoing contractor to take on the employer liability, especially if that person is a long server….
I WAS TRANSFERED UNDER T.U.P.E 6 YEARS AGO AND THE COMPANY NOW WANT TO CHANGE MY CONTRACT CUTTING HOURLY RATE CUT HOLIDAYS BY 9 DAYS REDUCE SLEEP OVER RATES CAN THEY JUST DO THIS
I have worked for a company for 11years as office manager. The owner of the company is selling as he is retiring. The company who are looking to buy do not want to operate from these premises and would be looking to operate from new premises approx. 35 miles way (1.30hrs) this is to far for me to travel am I entitled to a redundancy package and who would be responsible for payment the new company or my current employer.
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