The main changes are:-
- Clarifying the circumstances in which a service provision change is to be viewed as a TUPE transfer. This is done by clarifying that the activities being carried out must be "fundamentally the same" before and after the transfer (Regulation 3(2A)).
- The wording of Regulation 4 (which relates to restrictions concerning variations to contracts of employment in a situation involving a relevant transfer) is amended to more closely reflect the wording in the Acquired Rights Directive. The new wording makes reference to a purported variation of a contract being void if the sole or principal reason for the variation is the transfer. It goes on to indicate that this does not prevent an agreed variation if the sole or principal reason for the variation is an economic, technical or organisational ("ETO") reason entailing changes in the workforce or "if the terms of that contract permit the employer to make such a variation". It is unclear whether this will make any difference in practice and it will be for the Tribunals and Courts to interpret the new wording.
- The amended Regulation 4 wording now provides that, for the purposes of an ETO reason, "changes in the workforce" includes a change to the place where the employees are employed. This will allow a contract to be validly varied by agreement (or by the exercise of a mobility clause) where there is to be a change in workplace location as a result of the TUPE transfer.
- Allowing for renegotiation of terms agreed in collective agreements, where the variation takes place more than one year after the transfer, provided that any changes are no less favourable to the employees.
- A static interpretation of collective agreement terms has been provided for in the context of a TUPE transfer (Regulation 4A). This is a direct result of the case of Alemo-Herron & Others v Parkwood Leisure Limited [2013] IRLR 744. This means that, if a contract of employment incorporates provisions of collective agreements, any rights in relation to such collective agreements which are agreed and come into force after the date of the transfer do not transfer if the transferee is not a party to the collective bargaining process.
- The wording of Regulation 7 (which relates to the dismissal of employees because of a relevant transfer) is amended to more closely reflect the wording of the Acquired Rights Directive. In addition, the meaning of "entailing changes in the workforce" in Regulation 7 is amended to include changes to the workforce's location. This means that dismissals due to a change in work place, which are related to a TUPE transfer, will no longer be automatically unfair.
- The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) is amended to allow a transferee proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less to commence consultation (with the consent of the transferor) prior to the transfer date so that it counts towards satisfying the collective redundancy rules (this is done by inserting a new section 198A and 198B into the TULRCA 1992).
- Increasing the timescale for the provision of employee liability information from 14 to 28 days (Regulation 11(6)(a)) for transfers that take place on or after 1 May 2014.
- Employers with fewer than 10 employees are (where the transfer takes place on or after 31 July 2014) permitted to inform and consult with their employees directly where there are no appropriate representatives and the employer has not invited the affected employees to elect employee representatives (Regulation 13A).
Updated BIS guidance on TUPE, which takes into account the changes referred to above, has recently been published as a result and is available here.
The amendment regulations can be accessed here:-
