LRD guides and handbook February 2014

TUPE - a guide to using the law for union reps

Chapter 1

The key changes to TUPE in 2014

[ch 1: pages 11-12]

• The changes affect all TUPE transfers that take place on or after 31 January 2014

Collective redundancy consultation: Changes to the collective redundancy consulation rules in TULRCA will give the prospective new employer the right (but not the duty) to consult with representatives of the transferor’s workforce before the transfer date, where the transferee proposes to carry out collective redundancies after the transfer date, but only with the transferor’s agreement. This consultation can be included in the minimum 45/30 day statutory collective consultation period under TULRCA, but it must be meaningful. Any resulting redundancy dismissals must be carried out by the transferee after the transfer date. This change is explained on pages 44-47;

Definition of service provision change: The definition of a service provision change in Regulation 3(1)(b) of TUPE has been expanded to add a requirement for the activities carried out after the transfer to be “fundamentally the same” as those carried out before it. This change is explained on page 16;

Contract change: change to contract terms will be void if “the reason for the variation is the transfer” unless:

◊ there is a valid economic, technical or organisational reason for the change entailing changes to the workforce (an ETO reason);

◊ the contract expressly allows the change;

These changes to Regulation 4 of TUPE are explained in more detail on pages 55-58..

Changes in location: The definition of an ETO reason “entailing changes to the workforce” under Regulation 4 of TUPE has been expanded to include changes to work location. In other words, there will be an ETO reason for contract variation or dismissal if the location where employees are employed is changed because of the transfer, resulting in redundancy. This change is explained in Chapter 3;

Downgrading of collectively agreed terms: Collectively agreed terms are given a lower level of protection than other contract terms. Where a term has been “incorporated from a collective agreement”, changes to that term can be agreed, to take effect a year after the transfer date, even though the reason for the change is the transfer, as long as the replacement contract terms “when considered together” are “no less favourable to the employee”. This change is discussed on pages 58-60;

Static effect of collectively agreed terms: As expected, the new regulations codify the ECJ decision of Alemo-Herron on the status of sector or industry-level collective agreements after a transfer (see page 60). New Regulation 4A says that where an employment contract incorporates provisions of collective agreements “as may be agreed from time to time”, any provision of a collective agreement that “is agreed and comes into force after the date of the transfer” shall not bind the transferee unless it is a party to the bargaining process. Instead, “the contract has effect after the transfer as if it does not incorporate” the collectively agreed term. This change is discussed on pages 60-62.

Changes to the law on automatically unfair dismissal:

◊ a dismissal will be automatically unfair under TUPE if the reason for the dismissal is the transfer and there is no ETO reason for the dismissal; and

◊ workplace relocation is now an ETO reason capable of justifying a fair dismissal.

These changes are explained on pages 71 and 33 respectively.

Deadline for employee liability information: The deadline for supplying employee liability information has changed from 14 to 28 days before the transfer. There is no requirement for this information to be made available to union reps;

Consultation duties of micro-businesses: Where a business employs fewer than ten employees and there is no recognised union, that employer can opt to consult directly with workers instead of through representatives.