{"id":473,"date":"2014-02-19T12:31:14","date_gmt":"2014-02-19T12:31:14","guid":{"rendered":"http:\/\/www.tayloremmet.co.uk\/blogsite\/?p=473"},"modified":"2014-02-19T12:31:14","modified_gmt":"2014-02-19T12:31:14","slug":"major-changes-to-tupe-the-devil-is-in-the-detail","status":"publish","type":"post","link":"https:\/\/www.tayloremmet.co.uk\/blogs\/major-changes-to-tupe-the-devil-is-in-the-detail\/","title":{"rendered":"Major changes to TUPE: The devil is in the detail"},"content":{"rendered":"

\"\"<\/a>The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 came into force on 31 January 2014 following a lengthy Government consultation. These Regulations have sought to simplify, clarify and reform the TUPE Regulations; the first major change since 2006. I previously blogged on these changes last year, which I described as a sensible set of reforms.<\/a><\/span><\/p>\n

As is often the case with new legislation the devil is in the detail and further consideration of the changes to TUPE highlight some interesting issues which are likely to result in new areas of case law.<\/p>\n

Changing terms and conditions of employment following a TUPE transfer is one of the most difficult and frustrating areas of the Regulations in practice. Is there a new chink of light for transferrees wishing to do this in the updated Regulations?<\/p>\n

We all know that TUPE has for a long time prohibited detrimental changes to terms and conditions by reason of the transfer. However, the new Regulation 4 states that TUPE does not prevent a variation of the contract of employment if the terms of the contract of employment permit the employer to make such a variation. What does this mean in practice? Does this mean that if an organisation inherits staff under a TUPE transfer and their existing contracts have mobility clauses or flexibility clauses that their new employer can make changes using these clauses without breaching TUPE? What if the existing contract allows changes to be made to terms and conditions upon giving reasonable notice \u2013 can the transferee use such a provision to make changes that would otherwise have been considered transfer-related? That is certainly the implication, although this would appear to potentially bring TUPE into conflict with the Acquired Rights Directive and case law of the Court of Justice of the European Union.<\/p>\n

I previously opined that the amendments to Regulations 4 and 7 on the prohibition on changing terms and conditions of employment and dismissing staff by reason of a TUPE transfer did not represent any major change of substance. The more I look at the final Regulations the more I am forced to reconsider this view. This is a very technical area but in essence TUPE previously prevented dismissal and changing terms and conditions where this was due to the transfer itself or a reason connected with the transfer (that was not an economic, technical or organisational (ETO) reason entailing changes in the workforce).<\/p>\n

The new Regulations provide that the dismissal or change in terms and conditions will only be unfair\/void where the sole or principal reason for the dismissal\/variation is the transfer. The concept of reasons connected to the transfer<\/em> has been removed. So on the face of it, a dismissal\/variation is either by reason of the transfer or it is not.<\/p>\n

But where does this leave ETO reasons? The Regulations go on to permit dismissals\/variations where the sole or principal reason for the dismissal\/variation is an ETO reason. The problem with an ETO reason is that it has to entail \u201cchanges to the workforce\u201d (in terms of numbers or job functions) and such changes do not always apply. But if the TUPE transfer is not the \u201csole or principal reason\u201d for the dismissal\/variation then does the employer even have to concern itself with ETO reasons at all? As long as the sole or principal reason for the dismissal\/variation is not the transfer then dismissal is not automatically unfair and the change is not void. What about reasons for dismissal which are neither by reason of the transfer nor for an ETO reason? This poses something of a conundrum because one might ask (and a Tribunal surely would) why Parliament has included the concept of ETO reasons if they do not really achieve anything?<\/p>\n

I will be seeking to answer these questions and more at a TUPE Masterclass seminar which we are running in Sheffield on 20 March 2014<\/strong>. This event will also consider the following key areas:<\/p>\n