Response to Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006: consultation on proposed changes

An argument against the Coalition's claim that current TUPE laws "gold-plate" the Acquired Rights Directive, on which they are based, is a falsitude.

The IER has submitted it’s response to the government’s call for evidence on the proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006.

As part of its reform of vital TUPE regulations, the government is seeking to change provisions in the following areas:

service provision changes
employee liability information
restrictions on changes to terms and conditions and protection against dismissal
economic, technical or organisational reasons for dismissal
duty to inform and consult representatives
micro businesses

Richard Arthur, Head of Thompsons Solicitors’ Trade Union Law Group and author of the IER’s submission to the consultation, argues against the Coalition’s claim that current TUPE laws “gold-plate” the Acquired Rights Directive, on which they are based, is a falsitude.

“The Court of Justice has consistently held that the purpose of the Directive is not to achieve a uniform level of protection across the EU. Instead, the objective is “partial harmonisation” . Against this background, it is misplaced for some to speak of the current version of TUPE “gold-plating” the requirements of the Directive,” he states.

“What those who use the term mean when they complain that the current version of TUPE “gold-plates” the Directive is that, in certain limited circumstances (and the inclusion of Service Provision Changes is one example), the protections afforded by TUPE may exceed the bare minimum requirements of protection laid down by the Directive. It is a gross manipulation to say that if TUPE exceeds the minimum requirements of the Directive, then that amounts to “gold-plating”. Instead, what is clear amongst these interests is a desire to see the Directive implemented so as to provide for the absolute minimum of employee protection,” Mr Arthur continues.

“Notwithstanding the purpose of TUPE and the Directive,, it is impossible to identify one single measure in the consultation document which is even claimed to further the aim of safeguarding employees’ rights. This is a set of proposals aimed at benefiting employers and is, as the Impact Assessment acknowledges, likely to disadvantage the low paid (especially women), and those with disabilities,” he highlights.

Also available is Unison’s submission.