Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The Government is consulting on its proposals and the deadline for a response is 11 April 2013. We will be preparing a response to the consultation and would welcome your views. Some of the changes are controversial – we have detailed the changes below and provided comments on the proposals in the briefing, Will TUPE get any easier?
- Removing the definition of service provision changes from within the scope of a TUPE transfer. The test to determine whether TUPE applied would revert to that under TUPE 1981;
- Alternatives suggested to repealing the provision in full are to only include ‘vulnerable’ types of work within a service provision change, such as cleaning or security; amending TUPE to only cover ‘first generation outsourcing’ or excluding certain ‘professions’ from a TUPE service provision change.
- Repealing the specific time requirement regarding the notification of Employee Liability Information within 14 days of the transfer and instead making it clear that the transferor should disclose the information where it is necessary to enable the parties to perform their duties regarding information and consultation, the suggestion being that this should happen ‘in good time’;
- Amending the current restriction on changing terms and conditions post transfer to reflect the wording of the EU Directive that a post transfer change to terms and conditions is only prohibited when it is "by reason of the transfer itself" rather than also "connected to the transfer". The intention is to make it easier to change terms and conditions post transfer. Similarly, the Government proposes to amend the provisions regarding dismissals to only prohibit dismissals that are because of the transfer itself, rather than also connected to the transfer;
- Limiting the obligation to comply with collectively agreed terms and conditions to one year post transfer at which point, variations could be made even if they were because of the transfer itself (i.e. to achieve harmonisation);
- Amending the meaning of "entailing changes in the workforce" so that it can cover changes in the location of the workforce. This would align the ETO under TUPE with the definition of redundancy for the purposes of unfair dismissal law meaning that a dismissal following TUPE due to a change of location would not be an automatically unfair dismissal, but will still be subject to the usual unfair dismissal rules;
- The test as to whether a transfer is to an employee’s material detriment such that they can pursue an unfair dismissal claim will be narrowed;
- Allowing pre-transfer consultation to count towards collective redundancy consultation, thus reducing the burden on business; and
- Allowing micro-businesses to inform and consult employees directly regarding transfers, rather than through representatives.
For more information
If you would like to submit comments to us to contribute in our response to the consultation please contact Kate Watkins on firstname.lastname@example.org, Matthew Wort on email@example.com or call 0121 212 7494 by 4 April 2013. To see the full list of questions for the consultation or to respond direct to BIS, click here.
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