HR Focus
Tony Thiaray - Commercial Lawyer for construction materials provider, Lafarge Tarmac
Comment:
might be a good thing because some bosses would make more money and might be a bad thing because it would increase uncertainty. Some service providers will find they are left with liabilities when their contracts end, since the ending of ‘gold plating’ (which was a bad thing) means they will have to pay off workers they otherwise would have passed on to the new contractors. This is a... well, you’ll have to work that out for yourself. Another round of TUPE changes is always a good thing for employment lawyers (who wear wigs and not tupes at all).
Now here comes the test I promised. You need to make up your own mind and respond to the consultation documents on TUPE by 11th April 2013. This is really important for anyone who is contracting out services, taking them back in- house or providing services under a contract on an ongoing basis.
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Whichever way you look at it, the Government’s proposals to amend the TUPE laws are going to have significant repercussions, particularly for contractors. The most significant and controversial reforms being the proposals to repeal the service provision change (SPC), which, if repealed, will arguably send us back to pre- 2006 era when there was great uncertainty and legal debate (not to mention extensive litigation) in predicting whether TUPE would apply.
As a word of advice for incumbent contractors should, the above be adopted, it’s more than likely that TUPE may not apply at the end of your current contract. I’d suggest taking what (legally permissible) steps you can to protect your position, as the Government’s proposed repeal of the SPC will undoubtedly lead to confusion as to whether or not a particular SPC even constitutes as a ‘relevant transfer’ and, consequently, whether or not TUPE even applies. This is not withstanding the other proposed TUPE changes the Government proposes, these briefly include:
• Giving new employers greater discretion to vary the terms and conditions of transferred employees (post transfer);
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• Repealing specific requirements regarding the notification of employee liability information.
• Allowing micro-businesses (10 or fewer employees) to consult directly with affected employees as opposed to via representatives.
The Government argues that the aforementioned changes will reduce people costs, enhance competition and boost enterprise. In practice, and until greater clarification is provided from the Government, the above proposals are unlikely to offer employers any greater clarity than they currently have.
From a legal and personal perspective it’s not just changes to the TUPE law that are needed. The European Acquired Rights Directive is arguably already a sufficiently competent piece of legislation. However, the law alone can’t guarantee a successful transfer. Instead, the focus should be on greater employee, union and cross- party engagement. Communication and openness are the keys to completing a successful transfer; after all, we’re talking about people’s livelihoods, not just profit.
Keep a look out for further comment from Tony in future issues!
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