The Government has published its response to the consultation on proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

The service provision amendments introduced in 2006 will not be repealed. The rules will be clarified to take into account recent case law, namely that for there to be a TUPE service provision change, the activities carried on after the transfer must be ‘fundamentally or essentially the same’ as those carried on before it.

Also, following the decision of the European Court of Justice in Alemo-Herron and others v Parkwood Leisure Limited, The Government will amend TUPE to provide expressly for a ‘static’ approach to terms of employment derived from collective agreements when there is a TUPE transfer and setting a limit of one year during which collective agreements negotiated pre-transfer will continue to bind transferees. After that time, terms of employment will be able to be renegotiated provided the changes are no less favourable to employees.

In addition, the minimum time period for complying with the rules regarding the provision of employee liability information will be extended to 28 days prior to the date of transfer and businesses with 10 or fewer employees will be allowed to inform and consult directly employees affected by the transfer when there is neither a recognised independent trade union in place nor any existing appropriate representatives.

The changes are planned to take effect in January 2014.