The employment law specialist has insisted that the existing TUPE regulations – introduced just five years ago and which are engaged with extensively when security guarding contracts change hands – are “so overly complex” that they have been open to various interpretations, making for an extremely uneven playing field while creating uncertainty for employers and employees alike.
Speaking not long after the Government began its consultation on proposed changes to the regulations – which were updated by the Department for Business, Innovation and Skills in 2009 – Bibby Consulting & Support’s managing director Michael Slade said that further reform of TUPE was absolutely vital.
“Any changes that help businesses, as long they are not unfair on employees, have to be welcomed,” he said. “The problem with the TUPE Regulations is they have become so very complicated. The Government needs to come up with something that is much less complex to use so that both sides know exactly where they stand.”
Slade added: “The current legislation is full of so many loopholes that organisations can unwittingly make mistakes which lead to employees making claims at employment tribunals for unfair dismissal. In some cases, employers have had to go as far as the House of Lords to obtain a final decision. This process can take up to two years and is incredibly expensive. Greater clarity will make everyone’s life a whole lot easier.”
Disagreement with the Trade Union view
Unions have said the Government was planning changes that would dilute employees’ rights and which would see the number of disputes rising and legal actions increasing, wiping out any savings for businesses.
Slade disagreed, pointing out that nobody has mentioned watering down employees’ rights, but they have talked about making TUPE less onerous and removing some of the ambiguities that can confuse organisations and allow clever professionals to manoeuvre through any loopholes they might encounter.
Slade asserted: “Our stance will always be towards fairness and setting things in stone so that all parties know where they stand. The bottom line is that the regulations as they stand are not clear or indeed are not in the least bit user-friendly. That has to change, for everyone’s sake.”
He added: “Until the amendments are announced, TUPE remains one of the most complex pieces of employment legislation and the penalties to businesses for failing to comply can be very costly indeed. For any employer not experienced in TUPE and contemplating a business transfer, expert advice is highly recommended before any action is taken.”
Implementing Euro law in the UK
The Transfer of Undertakings (Protection of Employment) Regulations 2006, known colloquially as TUPE, are the United Kingdom’s implementation of the European Union Business Transfers Directive. It’s an important part of UK labour law, protecting employees whose business is being transferred to another business.
The 2006 TUPE Regulations replace the old 1981 regulations which implemented the original Directive.
Main aims of the TUPE Regulations are to ensure that:
This does not apply to transfers which pass merely through the sale of a company’s shares. When that happens, because the company is still the same company, all contractual obligations remain the same.
The Directive and Regulations apply to other forms of transfer, through sale of physical assets and leases. The TUPE Regulations also apply in some cases for work transferred to contractors. Protected contract terms for workers include hours of work, pay, length of service and so on, but pension entitlement is excluded.
