Infologue.com Workplace contributor and labour lawyer of Beers Solicitors, Paul Housego discusses changes to Tupe in his latest article. Paul writes:
“Well. After all the Government publicity about abolishing service provision change (“spc”) as part of Tupe, the result of the consultation is that they are going to do no such thing. My partner at Beers, Julian Parry, was involved in the consultation process, and it does seem as though the Government listened to what was being said.
“The big simplification, which will be much welcomed, is that the service has to be fundamentally or essentially (are the two different?) the same as before.
“The hope is that by making spc more like a standard transfer of undertaking everyone will be clearer when tupe does and does not apply. For a standard tupe transfer, the economic entity that transfers must retain it’s identity after the transfer. It looks as if that is in effect going to be the same for an spc.
“Of course some will try to differentiate the two, but I rather expect Employment Judges to be unimpressed with such arguments, and the Employment Appeal Tribunal seems to prefer to use a common sense approach where it can.
“Some changes that were proposed will not take place, so if you have been concerned about them you need be no longer. For example a transferor will not be allowed to use economic technical or organisational reasons of the transferee to justify pre transfer dismissal.
“The biggest practical point to watch for is that information will have to be provided 28 days before a transfer, rather than 14. As there is a substantial cost in failing to inform and consult those engaged in tupe will have to be alert to get information out more quickly than before.
“The Alemmo Herron case will be put into the Tupe regs – the “static” transfer of contracts. The problem of employees getting pay rises because their previous employer awarded one to it’s workforce has gone, and will remain gone.
“If a tupe transfer means workers move, then these can be redundancies rather than there being a risk of them being automatically unfair as transfer related.
“One other big headache will get a bit easier. After a year terms and conditions can be changed – renegotiated – and that will not be in breach of the Tupe regs. The terms have, on balance, to be no less advantageous to the employee, but it does mean that it will be possible to have workforce wide similar terms and conditions within a reasonable time after acquiring workers.
“As ever there is no substitute for expert legal advice. The starting point for failing to failing to inform and consult is 13 week’s pay, and I anticipate we will see more of such cases.”