The Department for the Economy is proposing to introduce some - but not all - Great Britain TUPE reforms in Northern Ireland. Employers who are involved in TUPE transfers should be mindful of the proposed changes and the continuing, important differences between the jurisdictions.
Significant proposed changes in employment law are envisaged in the new 'Good Jobs' Employment Rights Bill consultation released by the Department for the Economy, including some proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 in Northern Ireland. Employers involved in TUPE transfers are encouraged to review these changes, which are explained below and respond to the consultation, which closes on 30 September 2024. Employers in NI may also wish to push for additional TUPE changes to be introduced in NI, to bring NI further in line with TUPE in GB. These further changes are also explained below.
Stakeholders who wish to engage in the consultation process are also invited to respond to our survey on key areas and aspects of the consultation.
TUPE in Northern Ireland
TUPE protects employees when the business or organisation they work for transfers to a new owner and when a service transfers to a new provider. TUPE applies in NI but with two important differences to TUPE in GB:
- first, the service provision change aspects are governed by separate local legislation in NI, the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006; and
- second, the changes that were made to TUPE in 2014 and 2023 in
GB do not apply in NI.
The TUPE position in NI therefore currently remains as it was in GB before 2014.
Proposals for change
The 'Good Jobs' Employment Rights Bill consultation specifically seeks views on whether 2014 and 2023 reforms to information and consultation obligations, which are explained in the table below, are now required in NI.
In addition, the Department for the Economy is seeking views on whether more clarity is required in law that TUPE only applies to employees and whether there is a need to remove the obligation to split employment contracts between multiple employers where a service is transferred to more than one new business. More generally, views are also sought on whether any other changes to the TUPE legislation should be considered.
Despite recent reforms in GB, more change appears to be on the horizon with the new Labour government promising to "strengthen the existing set of rights and protections, including for...workers subject to TUPE processes", although it has not specified how this will be achieved.
In our view, aligning the GB and NI position is a move for the better, and employers who agree with the proposals in the consultation, or indeed, who feel that further GB TUPE reforms should be replicated in NI, are encouraged to respond to this part of the consultation.
Key differences
The current key differences between TUPE in GB and NI are set out below, which include the main changes introduced in GB in 2014 and 2023, together with proposals for change.
| GB | NI | |
|---|---|---|
| What the law is called | TUPE | TUPE and, in relation to service provision change, the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 |
| Who the law applies to | Before leaving office, the
Conservative government opened a consultation about reforming TUPE
to clarify that it only works to transfer employees, not
workers. The outcome of this consultation is not known, but it seems unlikely that the new Labour government will take it forward given its intention to “strengthen the existing set of rights and protections, including for…workers subject to TUPE processes”. |
As part of the ‘Good Jobs' consultation, the Department for the Economy is seeking views on whether more clarity is required in law that TUPE only applies to employees, not workers. |
| Ability to make redundancies | The new employer (transferee) can consult with the
current employer's (transferor's) employees about
proposed collective redundancies prior to the transfer taking
place, provided the transferor agrees to this. It is useful for new employers to begin their legally required consultations prior to the transfer to lessen their payroll burden post-transfer. Redundancy collective consultation periods in GB are a minimum of 30 days for 20-99 affected employees and 45 days for 100+ affected employees. |
While TUPE does not prevent the new employer
consulting about redundancies in advance,
the minimum required period for redundancy
consultation is not deemed to start prior to transfer. Unions are
aware of this, which affects notice and payments. Redundancy collective consultation periods in NI are a minimum of 30 days for 20-99 affected employees and 90 days for 100+ affected employees. The differing requirements regarding the minimum period for collective consultation in large-scale redundancies can create complications for businesses undertaking UK-wide restructuring/reorganisation. There are currently no proposals to bring NI in line with GB within the ‘Good Jobs' consultation, but those who feel that such reforms should be replicated are encouraged to respond to this part of the consultation. |
| Deadline for the transferor to provide ‘employee liability information' (required information about the transferring employees) | The information must be provided at least 28 days prior to the transfer. | The information must be provided at least 14 days
prior to the transfer. There are currently no proposals to bring NI in line with GB within the ‘Good Jobs' consultation, but those who feel that such reforms should be replicated (on the basis that having this information 28 days before the transfer is preferable to 14 days before) are encouraged to respond to this part of the consultation. |
| Automatically unfair dismissals (a dismissal is automatically unfair if the sole or principal reason for the dismissal is the TUPE transfer, unless there is an economic, technical or organisational reason entailing changes in the workforce (ETO reason) | Changes in the location of the workforce following a TUPE transfer fall within the scope of an ETO reason, which prevents genuine place of work redundancies from being automatically unfair. | The GB position does not apply and a change in
location on its own is not enough to amount to an ETO reason. This is another area of divergence where there are no current proposals to replicate the 2014 GB reforms. Responses to the ‘Good Jobs' consultation are encouraged from those who feel that such reforms should be replicated in NI. |
| Duty to inform and consult | 2014 reforms permitted micro businesses (employers
with fewer than 10 employees and no union or elected
representatives) to inform and consult directly with employees
rather than through employee representatives. For transfers taking place after 1 July 2024, the reference to “micro businesses” has been replaced, now permitting employers to consult with employees directly when at least one of the following conditions is satisfied:
|
Neither the 2014 nor 2023 exemptions have been
implemented in NI meaning that, strictly, all employers have to
comply with their information and consultation obligations with
their union/elected representatives. In practice, some small
employers invite the employees to agree that they will all be
representatives and all consulted together. However, these provisions are the subject of the current consultation and might, therefore, change in 2025. This would, in theory, make transfers quicker and easier for employers to manage. Employers who would like to see this change in NI are encouraged to respond to the consultation. |
| Changing terms and conditions (generally, post-transfer changes are void if the sole or principal reason for the changes is the transfer (and in NI, a reason connected with the transfer) unless there is an ETO reason for the change) | Changing the place employees are employed is permitted (this
falls with an ETO reason).
|
Changes in terms and conditions where the reason
is connected with TUPE may be void - that is treated as never
having happened - with no specific time limit, so this can apply
even some years later. There are currently no proposals to bring NI in line with GB within the ‘Good Jobs' consultation, but those who feel that such reforms should be replicated in NI are encouraged to respond to this part of the consultation. |
| Collective agreements | If the transferee is not a participant in the collective bargaining then terms agreed after the transfer do not apply to it. | While the provision does not apply in NI, the practical
position from case law is essentially the same. Nevertheless, those who feel the GB position should be replicated in NI are encouraged to respond to this part of the consultation. |
| Service provision change | For there to be a service provision change, the activities carried on after the change in service provider must be "fundamentally or essentially the same" as those carried on before it. | While this does not apply in NI, the position is essentially
the same, based on pre 2014 case law. Nevertheless, those who feel the GB position should be replicated in NI are encouraged to respond to this part of the consultation. |
| Fragmentation of employment contracts where a service is transferred to different providers | Case law dictates that it is possible for an
employee's employment contract to be split into two or more
parts and transferred to two or more different entities upon a
relevant transfer. However, there are currently no provisions
within TUPE governing how this should be done. Before leaving office, the Conservative government opened a consultation about reforming TUPE to clarify that an employment contract may only be transferred to a single employer and may not be split, to solve the impractical consequences arising from case law. The outcome of this consultation is not known, and it is also not known how the new Labour government intends to proceed regarding this proposed amendment. |
As part of the ‘Good Jobs' consultation, the Department for the Economy is seeking views on whether there is a need to remove the obligation to split employment contracts between multiple employers where a service is transferred to more than one new business. |
What do the differences between TUPE in GB and NI mean?
Overall, the current TUPE differences between GB and NI mean a transfer of an undertaking or service provision change is potentially more onerous on NI businesses.
In particular, not being able to start the minimum time period for collective redundancy consultation pre-transfer in NI can be a real issue and potential cost for employers, particularly in service provision change transfers or where large-scale redundancies are envisaged.
Also, not being able to make the permitted GB changes to terms and conditions of employment can be a problem and should be handled carefully.
While the GB exemption to elect representatives doesn't apply, this is the subject of the current consultation and, in the meantime, employers in NI may be able to get around this if employees decide to elect everyone as representatives, or by having a quick election.
Takeaways for employers
Employers who agree with the proposals in the consultation, or indeed, who feel that further GB reforms should be replicated in NI, are encouraged to respond to this part of the consultation.
Our survey is open until 12 September for those who wish to participate in informing our response to the consultation, and readers are invited to join us on 10 September, when the team will provide an analysis on the proposed reforms and their likely impact for businesses.
In the meantime, while the consultation is ongoing, businesses operating in both jurisdictions should bear in mind the key differences in the TUPE legislation and remain vigilant to the fact that future changes to TUPE in one jurisdiction will not necessarily apply in the other.
Further information on the 'Good Jobs' consultation is available on our NI Employment Law Reform Impact Hub and our Consultation Dashboard breaks down the proposals by theme, explaining what each proposed change involves and its potential impact for employers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.