Guidance on TUPE Employment Rights published

16 January 2014

The Department for Business, Innovation & Skills has, at the last hour, published guidance on the revised 2006 TUPE Regulations and the 2014 Regulations.

On 6 April 2006, the revised Transfer of Undertakings (Protection of Employment) Regulations (called ‘the TUPE Regulations’ and ‘the Regulations’ in this guidance) came into force1.

The TUPE Regulations are amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 20142 (called ‘the 2014 Regulations’ in this guidance), which come into force on 31 January 2014.

These amendments will not apply in respect of any transfers which take place on or before 30 January 2014.

This guidance covers the TUPE Regulations (and to some extent other similar transfers) as amended by the 2014 Regulations.

Main changes made in the 2014 TUPE regulations

The 2014 Regulations amend the 2006 Regulations in their application in Great Britain. The 2014 Regulations introduced:

  • A clarification on the face of the Regulations regarding the test for service provision changes, the activities carried out after the change in provider must be fundamentally the same as those carried out by the person who has ceased to carry them out before it.
  • Amendments to the provisions which give protection against dismissal and restrict changes to contracts: these protections will apply where the sole or principal reason for the dismissal or variation of employment contract is the transfer. Those protections will not apply in certain circumstances where the sole or principal reason for the dismissal or variation is a economic, technical or organisational reason entailing changes in the workforce.
  • Amendments so that a change to the place where employees are employed can be within 'changes in the workforce'. This is relevant to the dismissal protection and the protection against variations of contracts.
  • Exceptions to the general restriction on varying contracts of employment
    • so that terms incorporated from collective agreements can be varied when more than a year has passed since the transfer, provided that overall, the contract is no less favourable to the employee and
    • so that employers can make changes permitted by the terms of the contract,
    • but in both cases, this is subject to the rules as to when a contract is effectively varied.
  • A provision so that in some circumstances, rights to terms and conditions provided for in collective agreements entered into after the date of the transfer are not transferred.
  • A provision allowing micro businesses to inform and consult employees directly when there are existing appropriate representatives.
  • The usual deadline by which the old employer must supply the employee liability information to the new employer is increased from not less than 14 days before the transfer, to not less than 28 days before the transfer.
  • An amendment to the Trade Union and Labour Relations (Consolidation) Act 1992 so that a transferee may elect to consult (or start to consult) representatives of transferring staff about proposed collective redundancies prior to the transfer (to meet the requirements for such consultation under that Act). The transferor must agree to such consultation.

A guide to the 2006 TUPE Regulations (as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014) for employees, employers and representatives