PUBLIC
CONSULTATION DOCUMENT
TRANSFER
OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) REGULATIONS 1981 (TUPE)
Summary of proposals on which views are sought in public consultation
The consultation
document sets out the Government’s proposals for the reform
of the TUPE Regulations. A more detailed
background paper 
(180Kb) on
the proposals is also available. The main proposals on which views
are sought (other more minor proposals are also put forward) are
as follows.
Transfers within
public administration
The Government
proposes to address past uncertainty over the Regulations’ application
in relation to transfers within public administration through:
- applying
the Cabinet Office Statement of Practice Staff Transfers
in the Public Sector (issued in January 2000); and
- where appropriate,
and subject to prior consultation with interested parties, ensuring
that TUPE-equivalent protections are afforded to affected employees:
- in case-specific
legislation, where that is the vehicle for effecting a particular
transfer within public administration; or
- by regulations
under section 38 of the Employment Relations Act 1999 on an
ad hoc basis in other cases or classes of cases outside
the Directive’s scope.
Service provision
changes
The Government
would welcome views on whether or not additional measures, going
beyond the requirements of the Directive, should be taken in the
Regulations in relation to their application to service provision
changes (contracting-out, reassignment of contract and contracting-in),
and if so what form these should take. Views are also invited
on whether there should be:
| a. |
separate
legislative or administrative measures introduced by individual
government departments specifically for the parts of the
public sector within their responsibility; or
|
| b. |
a
general extension of the Regulations’ scope in relation
to service provision changes for public and private sectors
alike using the powers in section 38 of the 1999 Act. |
Occupational pensions
The Government
considers that the uncertain legal position as regards the transfer
of occupational pension rights is unsatisfactory, and that in
implementing the revised Acquired Rights Directive legal certainty
should be achieved. There are a number of possible ways in which
this could be done. Possible approaches would be:
| a. |
amending
the TUPE Regulations so as to provide that ongoing occupational
pension rights are not transferred to the transferee,
but preserving the current public sector policy by way
of separate legislative or administrative measures introduced
by individual government departments specifically for
the parts of the public sector for which they are responsible;
or
|
| b. |
amending
the TUPE Regulations to provide a degree of protection for
occupational pension rights on transfer, for public and
private sector employees alike. |
The
Government would welcome views on this issue, and on a number
of possible options set out for achieving the approach described
at b).
Notification of
employee liability information
The Government
proposes to provide that:
- the transferor
in a prospective transfer of an undertaking is required to give
the transferee written notification of all the rights and obligations
in relation to employees that are to be transferred;
- if any
of the rights or obligations in question change between the
time that such notification of them is given and the completion
of the transfer, the transferor is required to give the transferee
written notification of the change;
- both these
types of notification may be given in more than one instalment,
but every instalment must be given:
- in
good time before the completion of the transfer; or
- if
special circumstances make this not reasonably practicable,
as soon as is reasonably practicable and in any case no
later than completion of the transfer.
Dismissal by reason
of a transfer of an undertaking
The Government
aims to improve the drafting of the provisions relating to unfair
dismissal on transfer grounds in the amended Regulations, in particular
by making clear that economic, technical or organisational reasons
entailing changes in the workforce (ETO reasons) are a subset
of reasons connected with the transfer.
Changes to the terms
and conditions of employment of affected employees
The Government
proposes to improve the operation of the Regulations by making
clear that they do not preclude transfer-related changes to employees’
terms and conditions that are made for an ETO reason. The lawfulness
of such changes will then clearly depend only on the normal considerations
that would apply irrespective of a transfer.
Application of the
legislation in relation to insolvency proceedings
The Government
proposes to provide that where certain insolvency proceedings
have been opened in respect of a transferor, any outstanding debts
toward employees either:
- fall to
be met from the National Insurance Fund, if they are within
the categories and statutory upper limits on amounts guaranteed
under the insolvency payments provisions of the Employment Rights
Act 1996; or
- pass to
the transferee, as at present, if they are not.
The Government
also proposes to provide that where certain insolvency proceedings
have been opened in respect of a transferor, changes by reason
of the transfer itself may be lawfully made to the terms and conditions
of employment of affected employees if:
- they are
agreed between either the transferor or the transferee and appropriate
representatives of those employees;
- they are
designed to safeguard employment opportunities by ensuring the
survival of the undertaking or business or part of the undertaking
or business; and
- they are
not otherwise contrary to UK law.
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