The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
The results of the consultation are as follows:
The Government will not now be removing the definition of service provision changes from within the scope of a TUPE transfer. Service provision changes will therefore continue to be caught by TUPE where the current conditions are met. The Government has agreed to review the guidance it provides to seek to make it as simple as possible to determine whther TUPE applies.
The Government intends to codify case law in defining a service provision change under TUPE as only happening where the activities carried on after the transfer are “fundamentally or essentially the same” as the activities carried out before the transfer.
The deadline for providing employee liability information will change from 14 days before the transfer to 28 days before. Regulations 11 and 12 otherwise remain unchanged.
The Government will amend the current restriction on changing terms and conditions post transfer to reflect the wording of the EU Directive more closely. However, the exact wording has not been published. The Government anticipates that the wording is “likely to refer to the “transfer itself” being the “reason” for the variation” (rather than also a reason connected to the transfer). This won’t give employers who want to change terms and conditions much comfort as the Government’s response states that the new test might also make post transfer changes void where they “might be considered ‘connected with’ the transfer”. The Government will also amend the protection against dismissal regulation (regulation 7) to be in line with this wording.
The Government will limit the obligation to comply with collectively agreed terms and conditions to one year post transfer provided that any changes because of the transfer itself are “no less favourable overall”.
The Government will not amend the regulations in respect of “a substantial change in working conditions to the material detriment of an employee”. The position will remain that where a substantial change takes place the employee can be considered as having been dismissed and this is likely to be automatically unfair.
The meaning of “entailing changes in the workforce” will be amended so that changes in location of the workforce can be within the scope of ETO reasons. This means that a dismissal following TUPE due to a change of location would not be automatically unfair, but will still be subject to the usual unfair dismissal rules.
The regulations will not be amended to allow dismissals by the transferor in reliance on the transferee’s ETO reason before the transfer takes place.
The Trade Union and Labour Relations (Consolidation) Act 1992 will be amended so that pre-transfer consultation will count towards collective redundancy consultation, reducing the burden on business. This is subject to the proviso that the transferee has carried out “meaningful consultation” and the transferor and transferee are able to reach agreement.
The Government will issue guidance on “what a ‘reasonable time’ is for the election of employee representatives” rather than amending the regulations- it was considered too difficult to provide a clear definition that would take account of all possible circumstances.
Micro-businesses will be able to inform and consult employees directly regarding transfers, rather than through representatives “where there is no recognised independent union or existing employee representatives”. Micro-businesses will not be exempt from any of the TUPE changes.
It is important to note that the amended regulations are not expected to be published until December 2013 so we are waiting for the final wording. We will be preparing a detailed briefing explaining the changes and the implications once the amended regulations are published.
For more information
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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