On 16 May 2024, the UK government launched a consultation paper setting out proposed amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and abolishing the legal framework for European Works Councils (EWCs). This follows the policy paper published in May 2023, “Smarter regulation to grow the economy”. Despite the general election and the dissolution of Parliament, the consultation remains open.  It remains to be seen what will happen as a result of any general election.

TUPE 

The new consultation proposes to:

  • Clarify the scope of TUPE to limit the provisions of TUPE to “employees” and to specifically state that workers do not fall within scope.  Although TUPE refers to “employees”, the definition was cast into doubt by the case of Dewhurst v Revisecatch Ltd (t/a Ecourier) in which the Employment Tribunal held that workers satisfying the wider definition in section 230(3)(b) Employment Rights Act 1996 are within the scope of TUPE and not just to employees.   This decision is not binding but the Government aims to remove the confusion and clarify the position. 
  • Clarify that an employment contract may only be transferred to one employer and may not be split between multiple transferee employers.    The decision of the European Court of Justice in ISS Facility Services NV v Govaerts held that a transferring employee’s employment contract can be split between the transferees into a number of part-time employment contracts.  This can often be difficult for parties to effect in practice.  The consultation seeks to clarify that the position should be that the employers taking over the business or service would be required to agree who should be responsible for each employee’s contract.

These proposals are in addition to changes to TUPE made by the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, which apply to TUPE transfers taking place on or after 1 July 2024.  These changes remove the requirement to elect employee representatives for employees with fewer than 50 employees or employees of any size involved in the transfer of fewer than ten employees.  

EWCs

The consultation also proposes repealing the current legal framework for EWCs in the UK, which would include a repeal of the current requirement that in-scope multinational businesses maintain legacy EWCs.  After Brexit new EWCs were not formed in the UK, but those that currently existed were maintained. 

The consultation closes on 11 July 2024.   As mentioned the consultation is progressing and what happens in terms of the proposals will depend on the results of the election. The Labour party is proposing to strengthen the protections for all workers with regard to TUPE and so it would seem unlikely that they would proceed with the first clarification.