TUPE reform: ‘regeneration’ rather than ‘extermination’ for gold-plating

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TUPE reform has long been part of the government’s proposals to cut red tape, ease the regulatory burden on businesses and remove UK provisions that go further than required by Europe (so-called ‘gold-plating’ of European Directives when they are implemented into domestic legislation). The government has now published the draft regulations for TUPE reform: the draft Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013. This cumbersome title heralds some of the problems the government has faced with implementing its proposals. Set out below is an overview of the draft regulations and a table summarising the key amendments.

The government now accepts that even though the service provision change (SPC) concept goes further than required by the Acquired Rights Directive (ARD), it provides certainty and is beneficial to all parties. In fact, it is ‘good regulation’.

So, the SPC concept remains but the new definition confirms that the ‘activities’ that transfer must be ‘fundamentally’ the same as the activities carried out ‘previously’. The intention is to reflect the position that we had got to under recent case law. The government considered that this requirement for similarity between the ‘activities’ pre- and post-transfer may not be generally appreciated, so it has specifically incorporated it into the SPC test…

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