For more information on employment law updates visit http://www.ibblaw.co.uk/services/employment Changes to the TUPE Regulations will come into effect from 31 January 2014. Erica Humphrey, solicitor in the employment team at IBB Solicitors summarises the main amendments. The 2014 Regulations amend the 2006 Regulations in their application in Great Britain, and apply: (a) when a business or undertaking, or part of one, is transferred to a new employer; or (b) when a ‘service provision change’ takes place (for example, where a contractor takes on a contract to provide a service for a client from another contractor). The Government’s consultation originally proposed to remove the application of TUPE from service provision changes, however it has been confirmed that TUPE will continue to apply to traditional business transfers and service provision changes.

1. IBB SOLICITORS EMPLOYMENT TEAM
Briefing
Changes to the TUPE Regulations will come into effect from 31 January 2014.
Erica Humphrey, solicitor in the employment team at IBB Solicitors summarises
the main amendments. The 2014 Regulations amend the 2006 Regulations in their
application in Great Britain, and apply: (a) when a business or undertaking, or part
of one, is transferred to a new employer; or (b) when a ‘service provision change’ takes
place (for example, where a contractor takes on a contract to provide a service for a
client from another contractor). The Government’s consultation originally proposed
to remove the application of TUPE from service provision changes, however it has
been confirmed that TUPE will continue to apply to traditional business transfers and
service provision changes.
Amendments to the
TUPE 2006 Regulations
Amendment
Comments
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•
Collective redundancies
Transferee (incoming employer) may elect to
consult representatives of transferring staff about •
proposed collective redundancies prior to the
transfer
•
(provided that transferor (outgoing employer)
gives permission)
•
•
•
Change in work location
Relocation can be a “change in the workforce”
Greater flexibility to change terms and
conditions by reason of the transfer (but
limited in practice)
Contracts can be varied if:
1. There is an ETO reason for the change;
2. The contract of employment allows the
employer to make the change
•
•
•
•
Allows redundancy consultation prior to transfer to count towards 30/45
day redundancy consultation
Greater freedom to finalise dismissals shortly after the transfer (nb:
individual consultation must still take place after the transfer because the
transferee must rely on own ETO reason)
Transferee “elects” to consult representatives in writing and requests
agreement from transferor
Agreement from transferor is necessary in order for transferee to consult
with transferring employees
No obligation on transferor to assist transferee
May require review of service contracts to include obligations on
transferor to permit collective consultation prior to transfer and obligation
to provide transferee access to the workforce to collectively consult
Previously unclear whether change in location was an ETO reason
entailing “changes in the workforce” – therefore potential automatic unfair
dismissal
However, TUPE will now include provisions so that changes to an
employee’s place of work can amount to an ETO reason entailing “changes
in the workforce” (even where numbers of workforce do not change)
Previously any change would be void if the reason for the change is:
 For reason of the transfer itself; or
 A reason connected with the transfer
Makes changes less open to legal challenge although still better to leave
passage of time between the transfer and the change
Distinction between “the transfer itself ” and “a reason connected with the
transfer” is not clear
This briefing note is only intended to provide general guidance
and is not intended to constitute legal advice.

2. IBB SOLICITORS EMPLOYMENT TEAM
Amendments to the TUPE 2006 Regulations
Amendment
Comments
•
Greater flexibility to dismiss (but limited in
practice)
•
No automatic unfair dismissal where dismissal is
for a reason connected with the transfer
Only dismissals that are by “reason of the transfer” itself will be
automatically unfair
However, as above, distinction between “the transfer itself ” and “a reason
connected with the transfer” is not clear. It remains unknown how the
distinction will be interpreted by Tribunals/Courts
Employee Liability Information
[NB: applies to transfers which take place on
or after 1 May 2014]
Employee liability information to be provided
not less than 28 days before transfer
Previously required to be provided no less than 14 days before transfer
Failure to do so can give rise to claim for no less than £500 for each
employee
Actual information required to be provided remains unchanged
•
•
•
Terms derived from Collective Agreements
(those agreed with Trade Unions)
Terms derived from Collective Agreements can
•
be changed provided that:
1. They are varied one year after the transfer; and
•
2. After the change, the contract terms overall
are ‘no less favourable’ to the employee than
before the change
Service provision change
Service provision change, activities before and
after must be “fundamentally the same”
Micro businesses
[NB: applies to transfers which take place on
or after 31 July 2014]
Micro businesses can consult directly with
employees
Transferees have greater flexibility to agree direct with employees mutually
beneficial improvements in terms
It remains to be seen how “no less favourable” will be interpreted
•
Clarifies case law on this point therefore no real practical change
•
Businesses with fewer than 10 employees can consult direct with
employees (rather than employee representatives)
To discuss issues raised by this note, please contact:
Erica Humphrey
Solicitor, employment team
01895 207262
erica.humphrey@ibblaw.co.uk
08456 381381
ibblaw.co.uk