The UK Government has announced it is seeking views on the effectiveness of the legislation governing employee rights on business transfers. The move follows criticism of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (the TUPE regulations) as being ‘gold-plated’ (going further than is strictly required by the European Acquired Rights Directive on which they are based) and overly bureaucratic.
If the evidence suggests changes might be needed there will be a formal consultation in 2012. Simon Rice-Birchall, partner at international law firm Eversheds, comments:
“Reform of TUPE legislation has been on the Government’s radar since it came into office. Although the Government’s call for evidence does not itself contain any concrete proposals, it will be seen by employers as a step in the right direction.
“Two aspects of TUPE of particular concern to employers are addressed in today’s paper. The first is the way TUPE is applied when there is a change of service providers; the law in this area could be more closely aligned with what are considered less onerous European requirements. Secondly, restrictions on the ability to harmonise employment contracts post-transfer mean employers can be left with groups of employees on quite different terms and conditions, which can lead to friction amongst staff and management difficulties. Alongside these points the Government is asking for views on whether more needs to be done to clarify the application of TUPE in insolvency situations and the interaction of TUPE with other areas of employment law, particularly redundancy consultation, both of which areas would benefit from clarification.”
Government recommends expansion of Acas early conciliation service
Workplace relations experts Acas have welcomed Government plans to expand its pre claim conciliation service. The announcement, included in the Resolving Workplace Disputes consultation, means all potential employment tribunal claims will be offered early conciliation with Acas.
Under the new system anyone intending to make an employment tribunal claim would need to notify Acas of this in the first instance. Acas would then have a specified time period in which to provide conciliation. If this didn’t resolve the matter a claim to a tribunal could then continue.
Acas Chair, Ed Sweeney said: “We are pleased that the Government recognises the success of pre claim conciliation and has recommended the service becomes a more formal part of the dispute resolution system. This will mean greater access to earlier intervention in workplace disputes and ultimately more long term, positive working relations.
“Pre claim conciliation was introduced in April 2009 and since then we have helped 38,000 employers and employees avoid the cost, stress and anxiety of an employment tribunal. In 2010 three quarters of potential disputes that qualify for PCC were kept out of the tribunal system.
“This announcement will mean significant changes to the work of our highly experienced conciliators and the systems and processes that support them. We will be working with our sponsor Department, BIS, over the coming months to work through the details more closely.”
In 2010 independent research found that when staff time and legal costs are factored in, businesses who resolve disputes through the service save Ã‚Â£3,700 on average, compared to costs involved once an employment tribunal claim has been made. And employees save on average nearly Ã‚Â£3,000 when resolving a PCC case compared with dealing with an employment tribunal claim.
Acas currently has a discretionary power to provide pre claim conciliation. The scope of the service is currently limited. To accommodate the changes announced this will be changed to a duty. Acas will continue to offer conciliation once a claim has been lodged to a tribunal. The changes will be in place by 2014.