Government consultation: Proposals to change regulation 4(9) of TUPE

The government is unhappy with several aspects of regulation 4(9) including:

• the fact that regulation 4(9) of TUPE provides a remedy for employees even where there has been no fundamental breach of the employment contract;

• the fact that transferors can sometimes be liable where employees resign before a transfer in anticipation of substantial detrimental changes to their working conditions intended by the transferee;

• the fact that a substantial change to an employee’s material detriment can include a change in location, even where the contract contains a mobility clause (see the Tapere and Abellio cases).

Changes to the TUPE regulations from October 2013 are likely to address these points. In particular, the government is intending to change the definition of “economic, technical or organisational reason entailing changes in the workforce” so that it expressly includes changes to the location of the workplace, reversing this aspect in the Tapere and Abellio cases.