The UK Government consults on proposed changes to the TUPE Regulations

by Pillsbury Global Sourcing Practice

In a previous post, TUPE: Service Provision Change, we discussed that the UK Government had issued a Call for Evidence to review the current Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE 2006") as part of its wider review of reforms to UK employment laws. The Call for Evidence concluded in 2012 and the UK Government has now launched a consultation on its proposal to amend TUPE 2006, which it believes will improve and simplify the regulations for all parties involved.

The Proposed Changes
The Government's proposed changes to TUPE 2006 include:

1. Removal of the Service Provision Changes ("SPC"). As a result, outsourcing, in-sourcing and re-tendering would not be brought expressly within the scope of TUPE.

2. Removal of the requirement to provide Employee Liability Information at least 14 days before a transfer and replace this with an obligation that the parties disclose information necessary for the parties to comply with their duties under TUPE.

3. Enabling pre-transfer consultation under TUPE to count towards collective consultation on redundancies and to allow smaller businesses to inform and consult with employees directly where there are no recognised trade union or existing employee representatives.

4. Allowing greater flexibility for employers to make changes to terms and conditions of employment post transfer. However, the Government will not introduce an express provision allowing parties to agree changes in order to harmonise terms and conditions of employment .Changing the wording of the provisions giving protection against dismissal so that dismissals will only be automatically unfair where they are by reason of the transfer itself. As a result dismissals for a reason connected with the transfer (which is currently automatically unfair) may potentially be fair, subject to the employer satisfying the normal test for a fair dismissal.

5. Limiting an employee's right to resign in response to a material detriment to their working conditions or to claim unfair dismissal as a result.

6. Expanding the definition of Economical Technical and Organisational (ETO) reasons to include changes in the location of the workforce. This would benefit employers who, depending on the facts, might be able to argue a broader range of ETO reasons for making a fair dismissal. The Government is also seeking views on whether a transferor can rely on the transferee's ETO reason to legitimise pre-transfer dismissals.

The effect of the proposed changes
Some of the proposed changes will be welcomed and will ease the burden on business, such as greater flexibility in making changes to terms and conditions of employment post transfer or being able to make employees redundant where there is a change in the location of the workforce. On the other hand, there is likely to be a wave of new legal challenges if the proposals are implemented. The repeal of the SPC provisions is a likely hot button. The UK Government view is that the SPC provisions impose unnecessary burdens on businesses and go beyond the requirements of the ARD. Supporters of the SPC provisions argue that they give needed clarity that TUPE applies to outsourcing, insourcing and re-tendering and thereby provide a level playing field. Businesses have also embraced the general assumption that TUPE will apply to service provision changes and factor the costs into their pricing model. The proposed elimination of the SPC provisions would once again bring unwanted uncertainty, much like the uncertainty that surrounded the application of TUPE 1981, with multiple criteria being applied inconsistently in European case law.

Next steps
The consultation will end on 11 April 2013 and any reforms (with the exception of the repeal of SPC provisions) are expected to come into force in October 2013. Although the Government has indicated that there will be a significant transitional period before the SPC provisions are repealed, when negotiating contracts going forward, it will be prudent for businesses to bear in mind that TUPE may not automatically apply on exit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pillsbury Global Sourcing Practice | Attorney Advertising

Written by:

Pillsbury Global Sourcing Practice

Pillsbury Global Sourcing Practice on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.