TUPE consultation change

The government has responded to the consultation on reforms to retained EU employment law in relation to consultation requirements under TUPE.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) implement the EU Acquired Rights Directive. The purpose of the TUPE Regulations is to protect employees’ employment rights when the business or undertaking for which they work transfers to a new employer.

TUPE may also apply when a business changes owner, or when a service transfers to a new provider (for example when another company takes over a cleaning contract).

Currently, in advance of a TUPE transfer, the current employer (the transferor) and the new employer (the transferee) need to inform and consult with the affected workforce’s existing representatives or arrange elections for employees to elect new representatives if they are not already in place before the transfer.

The government are extending the current flexibility for employers to consult directly with employees is extended to small businesses (with fewer than 50 employees) and to businesses of all sizes involved in transfers of fewer than 10 employees.

Having considered the evidence gathered, the Government has decided that it is appropriate to use the Retained EU Law Act’s s.14 powers to make a change.

When do these come into force? A draft statutory instrument indicates a proposal to implement at break kneck speed on 1st January 2024. Until then, the current law remains the legal position.

Employers now have a short period of review and where change is to be implemented, initiate changes.

The following adapted table from the government consultation response shows each of the original proposals by question and the next steps the government are proposing to take:-

REULTo change the consultation requirements in the TUPE regulations, to simplify the transfer process, while ensuring that workers’ rights continue to be protected. The government will proceed with the planned reforms to the TUPE consultation requirements. These reforms will allow small businesses (with fewer than 50 employees) and businesses of any size undertaking a small transfer (of fewer than 10 employees) to consult directly with their employees if there are no existing worker representatives in place.

PAYadvice.UK 9/11/2023

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