The results of the review into TUPE have been published by the Government. There are no draft regulations as yet but the changes are expected to come into force early next year as recently highlighted in my blog. Contrary to the media speculation, the provisions relating to service provision change overs are not to be repealed but instead changes will be made. The definition will be amended to make it clearer that this is restricted to situations where activities both before and after the transfer are essentially or fundamentally the same.
There are a number of changes concerned with terms and conditions of employment. Firstly, the economic, technical or organisational reasons defence to automatic unfair dismissal will specify that a change in the location of the business is within its scope. Secondly, transferees will be permitted to renegotiate collectively agreed terms one year after transfer provided overall they are at least as favourable to the employee. The recent ECJ case will be adopted to specify that collective agreements do not change after transfer to an employer who was not a party to that agreement.
There are a number of changes concerning consultation. The biggest is that small businesses will be able to inform and consult directly with staff without having to elect representatives. No doubt a welcome change for employers. Secondly, pre-transfer consultation can be counted towards post-transfer collective consultation providing it is agreed between the parties and the consultation is meaningful. This may in itself lead to ambiguity and satellite litigation. Finally, the time limit to provide employee liability information prior to the transfer will be extended from 14 to 28 days.
Also the definition of automatic unfair dismissal will be narrowed to exclude a reason connected with the transfer. I will provide further information once the draft regulations have been published so as always watch this space.