TUPE reform - Government launches consultation

The government has launched a consultation on potential reforms to TUPE.  The particular elements on which it is seeking a view are:

• Clarifying that TUPE will apply only to “employees”.  At present, the definition of an employee to whom TUPE applies is a wider definition than other areas of employment law (eg for protection against unfair dismissal). The consultation suggests that this current definition may cause confusion in some cases and also might give TUPE protection to a wider range of workers than intended (eg casual workers).
• Avoiding fragmentation of employees. TUPE can apply where a service is transferred to a new contractor. Further, it can apply where a service is transferred to multiple new contractors. Until relatively recently, it was understood that whilst on a transfer to multiple contractors, there might be a TUPE transfer to more than one contractor, employees could only transfer to one of the contractors (i.e. employees could not be split into two with part of an individual employee transferring to one contractor and part of them going to another contractor). However, a recent ECJ decision held that it saw no reason why in certain circumstances, individual employees could not transfer to more than one employer. This has caused confusion. The government proposes to amend TUPE to clarify that an employee may only transfer to one employer and where there are “fragmented” services transferring to multiple employers, it will be for those employers to agree between them who will be responsible for each employee.

Within the same consultation, the government is also seeking views on the future of existing European Works Councils, now that the UK is no longer in the EU.  

The consultation closes on 11 July 2024.