Leading employment lawyer sums up changes
Collective agreements on issues such as pay and conditions can now transfer to the incoming employer, under new TUPE laws.
The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 came into force on 31 January.
Leading employment lawyer, Dr John McMullen, partner, Wrigleys Solicitors, says: “Perhaps most controversial is the idea that a transferee may take the benefit of pre-transfer consultation over collective redundancies.
“A transferee may elect to carry out consultation in respect of proposed redundancies prior to the transfer provided that the transferor agrees to it and the usual requirements about meaningful consultation are satisfied. It is perhaps dubious whether this complies with European law and the process is conditional on both employers agreeing. According to BIS, ‘it is unclear how many businesses will decide to use this measure’.”
McMullen says an “awkward” point in the 2006 Regulations regarding transfers involving a change of location or workplace has now been settled, meaning such changes could no longer trigger automatic unfair dismissal claims.
He added: “In some ways the Regulations are more important for what they do not do than what they do.
“For example, apart from one small amendment the service provision change rules have been retained and the transferor’s obligation to give the transferee employee liability information has also been retained, and strengthened.
“Of interest to employers will be the simplification of the rules relating to permitted variations of employment contracts and dismissals because of a transfer. Variations will no longer be invalid and dismissals only automatically unfair if the sole or principal reason for the variation or dismissal is the transfer.”
McMullen says it will also now “be possible to renegotiate terms derived from collective agreements after one year and provided that employees are no worse off”.
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