01 Jul 2024
By Laura Salmond, Partner & Accredited Specialist in Employment Law, BTO Solicitors LLP
Changes to consultation under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) come into effect today (1 July 2024). These changes afford more flexibility to employers in their duty to inform and consult during a TUPE transfer and are, therefore, likely to be well received by employers.
Changes are in effect for TUPE transfers where there are no existing worker representatives in place. As a result, from today, the TUPE regulations will permit employers to consult directly with employees in the following circumstances where there is no trade union or existing relevant employee in place, and either:
The requirement to consult under Regulation 13 of TUPE, obliges both the transferor and transferee to consult with a recognised trade union regarding employees affected by the transfer. If there is no recognised trade union, they must consult with employee representatives either elected for this purpose or authorised to discuss the transfer on behalf of the affected employees. In cases where union recognition applies only to certain business sections, both employee and trade union representatives may need to collaborate.
Employers have a positive duty to facilitate elections for employee representatives when necessary. Prior to these changes coming into effect, under to Regulation 13A of TUPE, only microbusinesses (those with fewer than 10 employees) without a trade union or existing representatives could opt to consult directly with affected employees instead of electing representatives.
From today, this exemption will be extended as the legal definition of a micro business has been extended to mean a business with fewer than 50 employees, or to one where the number of affected employees is fewer than 10, regardless of the size of the organisation. This change will bring companies that are currently defined as small businesses into scope and reduce the burden on them.
All new micro businesses can now inform and consult directly through town hall-style meetings or written circulars, avoiding the costs and delays associated with electing representatives and holding formal meetings that require minutes and feedback.
These businesses should be able to consult directly with affected employees for transfers taking place on or after 1 July 2024. However, it is important to note that if a business already has elected representatives in place (such as Trade Union representatives), they must continue to use them for the time being. These changes suggest that the government aims to reduce the administrative burden on small businesses while maintaining employee protections.
If you would like further information on today’s changes to TUPE do not hesitate to contact a member of BTO’s employment team.
lis@bto.co.uk / 0141 221 8012
