What do the TUPE reforms mean for dismissals and redundancy arrangements?
Some subtle rule changes to dismissals and redundancies in TUPE situations have recently been introduced.
Dismissals in TUPE - what's new?
In the past, a dismissal that had arisen because of a transfer, or because it was 'connected with the transfer', would have been considered automatically unfair.
On 31 January 2014, an amendment to the regulations removed the 'connected with the transfer' element of what would be considered automatically unfair. But a careful approach is still advised.
Dismissals that are due to an 'economic, technical or organisational reason entailing changes in the workplace' (ETO), or are because of genuine redundancy reasons following a fair redundancy procedure, are likely to be considered fair.
Under the new rules, dismissals are no longer automatically unfair because of a change in workplace location. A change in location will now be covered by an ETO reason - but such a dismissal may still be unfair depending on other circumstances.
If the sole or principal reason for the dismissal is the transfer, it will still be treated as automatically unfair if challenged.
Dismissals that are ongoing or arise regardless of a transfer are unlikely to be affected by TUPE regulations.
New arrangements to redundancy consultation procedures
A change to regulations for TUPE transfers taking place on are after 31 January 2014 has allowed collective redundancy consultation to take place before the transfer.
Where the incoming employer intends to make 20 or more redundancies after the transfer, collective redundancy consultation may begin before the transfer if the outgoing employer agrees.
In this way, both employers can agree to pre-transfer redundancy consultation and begin consultation at an early stage with elected representatives and employees about the transfer and redundancies at the same time.
With two types of consultation running concurrently, it's important for there to be good, open communication between employers, representatives and employees.
As this is new territory, experts are recommending that employers take legal advice before proceeding.
Acas publications and services
Detailed information on all of the recent TUPE reforms, including those dealing with dismissals and redundancies, is available in the TUPE changes 2014 [161kb] changes to TUPE. See our Transfer of undertakings (TUPE) page for more information on TUPE.
In the coming weeks, Acas will be following this up with a full guide on TUPE and how to manage the process effectively.
Visit the Acas Training courses, workshops and projects area for more information.
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