With the recent employment law changes that have already come into force, and with more to come, it certainly is the biggest employment law shake-up we have seen for some time. In this blog, we focus on changes affecting TUPE law which are aimed at simplifying the consultation process, helping companies to save time and money, for transfers taking place on or after 1 July 2024.

What is TUPE Law and Why Does it Matter?

Transfer of Undertakings Protection of Employment, commonly known as the employment law TUPE regulations, exists to protect employees employment rights including benefits and continuity of employment, when transferring from one company to another. This may be by way of a business takeover (e.g., a business or part of a business is transferred from one employer to another) or a service provision change (e.g., work is outsourced to an external third party).

Economic (company performance), technical (equipment or processes), or organisational (company structure) (ETO) reasons are a legal basis for employers to change an employee’s contract after a transfer under the TUPE law.

Under the current TUPE UK employment law, employers have a duty to inform or consult with existing employee representatives where these are in place. The only exception applies in very limited circumstances where the company employs 10 employees or fewer (known as a ‘micro business’).

If an employer fails to inform and consult with their employees (or their representatives), workers can bring a claim to the employment tribunal. If successful, the employer can be liable for a financial penalty of up to 13 weeks’ pay for each affected employee. An employer would need representation from a legal firm with TUPE law solicitors to support them should the case proceed to tribunal which would incur high costs and potential reputational damage.

For TUPE transfers taking place on or after 1 July 2024, the changes will expand on this exception, simplifying the consultation process. From this date, there will be no requirement to elect and consult with employee representatives if the employer has fewer than 50 employees, or where the transfer involves fewer than 10 employees (regardless of the size of the employer). In either case, the employer will be able to consult directly with transferring employees, where no existing employee representatives are in place. It is important to note that, regardless of whether this exception would otherwise apply, where there are existing employee representatives in place (including trade union representatives), employers must ensure they continue to consult with those representatives.

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Benefits of the New TUPE Changes

  1. Simplified Process: The new regulations significantly simplify the TUPE consultation process for small businesses. By allowing direct consultation, businesses can save time and resources that would otherwise be spent on organising elections and coordinating with employee representatives.
  2. Improved Communication: Direct consultation fosters more open and transparent communication between employers and employees. It allows employees to voice their concerns and receive information directly from the management, leading to a clearer understanding of the transfer process.
  3. Reduced Administrative Burden: Commonly, small businesses often operate with limited administrative resources. The new TUPE changes reduce the administrative burden associated with the consultation process, enabling businesses to focus on maintaining operations and ensuring a smooth transition.

Practical Steps for Implementing Direct Consultation

TUPE laws in the UK are complex and easy to get wrong, with consequences for non-compliance. If you’re not sure if TUPE applies to your situation or require advice on complying with TUPE, our team of HR consultants can help. To ensure a smooth transition under the new TUPE regulations, businesses should follow these practical steps for direct consultation:

  1. Identify Affected Employees: Determine which employees will be affected by the transfer. This includes those who will be transferring to the new employer and those whose roles may be impacted by the transfer.
  2. Plan the Consultation Process: Develop a clear plan for the consultation process. This should include timelines, methods of communication, and key points to be discussed. Ensure that all affected employees are informed about the process and their rights.
  3. Provide Comprehensive Information: During the consultation, provide employees with comprehensive information about the transfer. This should include details about the new employer, any changes to terms and conditions of employment, and how the transfer will affect their roles.
  4. Address Employee Concerns: Allow employees to voice their concerns and questions. Be prepared to address these concerns and provide reassurance where possible. Transparency and honesty are crucial in maintaining trust and reducing anxiety among employees.
  5. Document the Process: Keep detailed records of the consultation process, including dates, attendees, and key points discussed. This documentation will be valuable in demonstrating compliance with TUPE regulations and addressing any future disputes.

Key Considerations for Businesses

While the changes to TUPE law simplify the consultation process for smaller businesses, it is essential to approach the process with careful consideration and thorough planning. Here are some key considerations for businesses:

  1. Employee Rights: Ensure that all employees’ rights are protected under TUPE during the transfer. This includes preserving their terms and conditions of employment and providing adequate information about the transfer.
  2. Communication: Effective communication is critical in any transfer process. Ensure that all affected employees are well-informed and have the opportunity to ask questions and express concerns.
  3. Legal Compliance: While the new regulations simplify the consultation process, businesses must still comply with all other aspects of TUPE law. This includes providing accurate information about the transfer and ensuring that employees’ rights are preserved.
  4. Support and Guidance: Consider seeking support and guidance from HR professionals or legal experts to navigate the TUPE process. This can help ensure compliance and provide reassurance to both employers and employees.

Conclusion

The changes to TUPE law taking effect on 1st July 2024 represent a significant step towards simplifying the transfer process for small businesses. By allowing direct consultation with employees, the new regulations reduce administrative burdens and foster more open communication. For businesses with fewer than 50 employees or transferring fewer than 10 employees, this change offers a more straightforward and efficient approach to managing employee transfers.

Here at MAD-HR, we understand the complexities of TUPE and are here to support you through this transition. Whether you need assistance with the consultation process or guidance on ensuring compliance, our team of experts is here to help.

Frequently Asked Questions

Useful questions and answers about “TUPE Law Changes – Simplifying the Process for Small Businesses”

How long does TUPE law last?

The period the employee is protected under TUPE is indefinite. It is forbidden for the new employer to attempt to change the terms and conditions of a contract because of the transfer; although it can be difficult to prove that the change was made as a result of the transfer, particularly as time goes by. Having said this, changes in employment terms may be permissible if there is an economical, technical or organisational (ETO) reason involving changes in the workforce or workplace, for example, as a result of redundancies or a move from a managerial to a non-managerial position; and if the employee consents to this change. It is important to note that any dismissal because of the transfer itself will be automatically unfair dismissal unless the employer can demonstrate there is an ETO reason for the dismissal.

What is TUPE in employment law?

TUPE law for employees’ protects their rights when part of the business is sold or transferred to another business, or there is a service provision change. TUPE applies to all relevant transfers, where a business or part of one ‘retains its identity’ after the transfer.</br> If the employee is transferring from one employer to another, they have the legal right to automatic transfer to the new employer on their existing terms and conditions of employment. On the date of the transfer, the new employer automatically takes over the employment contract and it is thereby continued from the previous employer.

Is TUPE European law?

TUPE was originally based on European legislation, however now that EU law supremacy has ended (31 December 2023), the Government is able to alter EU laws.