TUPE changes, recent rule-tweaks came into force in January 2014. They are not very significant. Government guidance is here.
Outsourcing
TUPE continues to apply to outsourcing/insourcing (there was talk of ending TUPE’s reach into this area). TUPE will only apply where the services provided before and after are ‘fundamentally the same’. This reflects half of the wording from the existing caselaw, which was ‘fundamentally or essentially the same’. We expect lawyers to argue that losing the word “essentially” means that new wording is less strict. Or more strict, depending on whose side they are acting.
Harmonising terms.
Variations in terms and conditions by agreement are now, in theory, permissible, as long as it is mainly for an ETO reason entailing changes in the workforce (if you are reading this far, we’ll assume you know what this means), rather than a desire just to harmonise terms. Until now, employees could ‘cherry-pick’, keeping the favourable new terms and rejecting the unfavourable new terms.
Changes to the location of the workplace are now a ‘change in the workforce’, so workplace redundancy dismissals will not be automatically unfair.
Micro-businesses (fewer than 10 employees in the business as a whole) may inform and consult with employees themselves rather than arranging an election of representatives (assuming there is no union or existing representative committee).
Transferees may consult with employee representatives pre-transfer to comply with collective redundancy rules (20 or more employees affected); obviously this requires the old and new employers to agree.
Employee liability information must be given 28, not 14 days before the transfer. The ‘real’ deadline remains “long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees” but it would be very unlikely that 28 days was not long enough for this.
If any future changes are to occur for TUPE this article will be updated.