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In summary the following changes are being made:
- The rules on service provision changes will remain, but the new regulations clarify that for there to be a TUPE service provision change, the activities carried on after the change in service provision must be “fundamentally or essentially the same” as those carried on before it.
- The requirement to provide employee liability information will be retained, but the information will have to be given 28 days before the transfer, rather than the current 14 days.
- There will be a static approach to the transfer of terms derived from collective agreements and transferees will be able to change terms derived from collective agreements one year after the transfer, provided that the overall change is no less favourable to the employee.
- Changes in the location of the workforce following a transfer will be expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (ETO reason), thereby preventing genuine place of work redundancies from being automatically unfair.
- The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) will be amended to clarify that consultation which begins before the transfer can count for the purposes of complying with the collective redundancy rules, provided that the transferor and transferee can agree and the transferee has carried out meaningful consultation.
- Micro-businesses will be allowed to inform and consult affected employees directly when there is no recognised independent trade union, or any existing appropriate representatives.
- Regulation 4 (restriction on changes to terms of employment) and regulation 7 (protection against dismissal) will more closely reflect the wording of the ARD and ECJ case law.
What’s not changing?
The legislation will not enable transferors to rely on a transferee’s ETO reason to dismiss an employee prior to a transfer (which had previously been suggested).
The provisions in regulation 4(9) will not be changed. This enables employees to claim that they have been dismissed where there is a substantial change in working conditions to their material detriment.
The Department for Business Innovation & Skills has published a new guide to help explain the above changes. It’s called Employment Rights on the Transfer of and Undertaking and you can read it from here.
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