Brain Food: Workplace rights - The trouble with TUPE

The long-overdue overhaul of laws protecting employees' rights on business transfers and outsourcing happens this month.

by Michael Burd and James Davies, Lewis Silkin solicitors, e-mail:employment@lewissilkin.com
Last Updated: 31 Aug 2010

The Government is finally implementing new Transfer of Undertaking (Protection of Employment) Regulations - known as TUPE. The revised version aims to clear up confusion over when the legislation applies. With minor exceptions, TUPE will now cover the initial contracting-out of services (eg, cleaning, catering and security), the replacement of one contractor with another and the bringing back of services in-house. A welcome innovation is a requirement for transferring employers to provide 'employee liability information' before the transfer. But only the new employer is entitled to this; there's no duty to give the details to all bidders when a contract is re-tendered.

Potential contractors will be in the dark if the client company does not have the relevant staff information and the outgoing contractor won't volunteer it. Ministers have also bottled out of making it easier to make changes to staff contractual terms after a transfer. Problems remain for businesses wanting to harmonise the conditions of staff they acquire under TUPE with those of existing workers - a poor advert for Labour's business-friendly credentials.

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