The Labour Manifesto has had some newspapers proclaiming a return to the 1970s but for TUPE it could be a return to a more recent past. Alongside the headline grabbing plans to nationalise the railways, the manifesto also contains a pledge to repeal the 2014 amendments to TUPE, which Labour claim weakened worker protection.
Click here to see our factsheet on the 2014 changes.
Labour’s wish to repeal some of the 2014 amendments does not come as a surprise. For example, it’s considered that the removal of the ‘reason connected with the transfer’ limb of the test for automatic unfair dismissal and contract changes makes it easier for the employer to dismiss and/or effect change following a TUPE transfer – despite the Government’s clarification that the 2014 changes created a ‘brand-new’ test and that matters previously falling in the ‘connected with’ category could still be covered.
However, it is unclear why Labour would deem a blanket repeal of the changes necessary. For example, some of the changes simply reinforce the existing case law position (like the ‘static’ interpretation principle and requirement for activities to remain ‘fundamentally or essentially’ the same). Further, some were viewed as advantageous for all involved, such as the requirement to provide Employee Liability Information at least 28 days before the transfer (instead of 14 days) which gives parties more time to make arrangements for incoming staff.
If you believe the polls (although who does after Brexit?) then the 2014 changes are here to stay but, regardless, our employment lawyers are on hand to walk you through the TUPE process pre, and post, 8th June! On that note, our employment team will be running a series of podcasts on TUPE in the coming weeks – so watch this space!