On 8 November 2023, the government published its response to the consultation on retained EU employment law.

The government confirmed it will proceed with its planned reforms to the TUPE consultation requirements. These reforms allow employers to consult directly with employees in relation to a TUPE transfer if there are no existing worker representatives in place and where the employer is either:

• a small business (with fewer than 50 employees) undertaking a transfer of any size; or
• a business of any size undertaking a small transfer (of fewer than 10 employees).

These minor changes do not change the existing requirement on businesses to consult on TUPE transfers, but alter the consultation process for eligible employers where they do not have employee representatives in place to consult. At present, only microbusinesses (with fewer than 10 employees) can directly inform and consult employees in this way, otherwise there is a requirement to consult with a recognised union or elect employee representatives.

Employers will still be required to consult employee representatives where they are in place and businesses will still have the choice to elect and consult representatives where that is their preference. Therefore, according to the government, workers’ rights will continue to be protected while businesses are granted more flexibility. Respondents to the consultation agreed that the proposal would also make the process of TUPE transfers easier.

However, as we have previously commented, where transfers impact a small handful of employees, many employers have typically consulted directly with employees in practice, often by seeking the agreement of the impacted staff to do so. In this particular scenario, the new reform may have little effect in practice.

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