In early September, the government issued its response to consultation on TUPE.
The once-threatened ‘service provision change’ rule has been given a reprieve and will not be abolished. This is welcome news as it avoids a return to the pre-2006 legal uncertainty as to whether or not a service provision change fell within TUPE. The TUPE regulations will be amended to confirm that for there to be a TUPE service provision change, the activities carried on after the change in service provision must be ‘fundamentally or essentially the same’ as those carried on before it (this basically confirms the position that has been well established by case law so has little impact in practice).
The rules on employee liability information will also be retained and the timescale for provision of this information will be extended from 14 to 28 days pre-transfer. This is still likely to be too close for comfort for most transferees and Walker Morris envisages that many will request a longer period in the commercial heads of terms. In the case of second and subsequent generation outsourcing, tendering contractors will want to establish what timescale the customer negotiated with the incumbent contractor…
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