To the relief of most HR practitioners, the proposal to abolish the service provision change limb of TUPE has been abandoned after most respondents in the consultation expressed concern that its removal would create too much uncertainty over the application of TUPE on service changeovers.
Other, less radical, changes will also be introduced in 2014:
- Activities carried on after the service provision change must be "fundamentally or essentially the same" as those carried on before if TUPE is to apply.
- Employee liability information must be provided by the transferor employer to the transferee employer at least 28 days before the transfer rather than the current 14 days.
- There will be subtle changes to give flexibility to employers to vary terms and conditions after a TUPE transfer.
- An ETO reason will be amended to include a change in the location of the workforce. This is intended to remove the anomaly whereby a redundancy can be fair if there is a change to the location of the workforce, but dismissal under TUPE for this reason is unfair.
- Consultation by the transferee pre-transfer is to count towards the statutory redundancy consultation period for redundancies post-transfer.
Although the precise regulations are yet to be published, HR teams involved in a TUPE transfer need to factor in the proposed changes.
Other key changes:
- The abolition of discrimination questionnaires. Most HR teams will welcome no longer having to complete resource-draining questionnaires that have become a means by which employees exert pressure on employers rather than the original intention to gather information for staff to assess whether they have grounds for a claim.
- "Mandatory conciliation" through Acas. Claimants will have to submit details of their dispute to Acas before issuing an employment tribunal claim. HR teams will view this as a final chance to resolve disputes.
- The right to request flexible working will be extended to all staff with 26 weeks' service, rather than just parents or carers. Expect a spike in requests.
Gurpreet Duhra is an employment partner at DLA Piper