30 January: TUPE Regulations changes 31st January 2014.
by Julian Cox, Partner and Head of Employment at Fletcher Day
TUPE 2014 represents the Government’s response to concerns raised by businesses that the current TUPE regulations effectively ‘gold-plates’ the EU Acquired Rights Directive from which the rules are derived, making them unwieldy and overly bureaucratic. The reforms which come into force on 31st January 2014 are intended to reduce bureaucracy and increase flexibility surrounding the regulations.
Whilst in places TUPE 2014 provides welcome clarity and much needed tidying up for employers and employment law practitioners having to grapple with TUPE and its effect, there are still a number of ambiguities. For example, the new rules introduce further amendments to the existing provisions which protect against dismissal and restrict changes to contracts in TUPE situations.
Going forward, these protections will apply where the sole or principal reason for the dismissal or variation of employment contract is “by reason of the transfer”. If past case law history on TUPE is anything to go by, the interpretation of whether changes to contracts of employment in a given situation were made "by reason of the transfer" poses a potential rich source for argument before tribunals and courts.
For many employers, the new TUPE rules still do not go nearly far enough. The fact that TUPE derives from EU originating legislation though effectively means there is only so much room for manoeuvre.
The spirit and essence of TUPE remains very much in tact, providing employment protection against dismissal and preserving accompanying terms and conditions for affected employees in situations such as where a business is sold as a going concern or an outsourcing situation. To remove such protection would require a much more radical overhaul of the UK’s legislative relationship with Europe which looks unlikely at this present time.
More About Julian Cox
Julian Cox heads the Employment Law team at Fletcher Day and is also a Partenr of the firm. He is a specialist employment law solicitor with over fifteen years’ experience and covers all aspects of employment law.
Julian Cox, Partner, Fletcher Day: julian@fletcherday.co.uk, 0207 766 5260, http://www.fletcherday.co.uk/
