The Government consulted earlier this year on proposed changes to retained EU employment law, including TUPE. The proposed changes to TUPE focused on the requirement to inform and consult with existing representatives, or arrange elections for representatives if they are not already in place.
Currently, microbusinesses with fewer than 10 employees have the flexibility to consult directly with employees - where worker representatives are not already in place. The Government consultation proposed to extend this flexibility to small businesses with fewer than 50 employees, and to all sizes of business for TUPE transfers of fewer than 10 employees.
The Government has confirmed that it will proceed with these planned reforms to the TUPE consultation requirements. Draft regulations have been brought forward which will affect TUPE transfers taking place on or after 1 July 2024.
From this date, employers fitting either or both of the criteria above will have the power to choose whether to consult directly with staff on the transfer, or to elect employee representatives where an appropriate body is not already in place.