January 28, 2013

It’s fair to say that TUPE has induced more than its fair share of headaches amongst employers since it was originally introduced over 30 years ago.  In a bid to make life a little easier, the Government has recently published a consultation paper setting out various options for reforming TUPE. Probably the most significant change is the proposal to remove the “service provision change” provisions.   This would greatly reduce the chance of TUPE applying in a contracting out/in situation or where there is a change of a third party contractor.  Although this may be welcomed by some, it will inevitably lead to more uncertainty over whether or not TUPE applies  when there is a change in service providers.   And uncertainty almost inevitably means more scope for litigation: good news for lawyers but not so good for everyone else. Other proposals include:

• removing the requirement to provide “employee liability information” prior to a transfer in favour of clear guidance and a general duty to disclose information where this is necessary for both parties to carry out their obligations;
• relaxing the restrictions on post transfer changes to terms and conditions;
• allowing a change in location post transfer to be a fair reason for dismissal;
• permitting transferees to carry out collective redundancy consultation with the transferring employees prior to transfer;
• making it easier for transferors to make transfer related redundancies prior to transfer.

The deadline for responses to the consultation is 11 April 2013.  Following that,  the proposed changes may come in as early as October 2013 (although there is likely to be a longer transition for the removal of service provision changes). If you would like further details please contact Marcus Rowland (0207 927 9677) or Seth Roe (01242 631262)