Evaluation
The benefits to individual workers is clear; TUPE prevents the possibility of everybody in the firm losing their jobs, just because the company providing the service changes. This gives employees increased certainty. A side-effect of the new regulations could prove unfortunate for some employers. This has been particularly highlighted in connection with law firms.
According to the Law Society's magazine, The Law Society Gazette, law firms might be forced to employ teams of lawyers when taking over contracts.
Under the new rules, if a client decides to source their legal work from a different provider, the legal team from the old provider would be entitled to transfer to the new provider under the same terms and conditions as before; if the new provider were to object, the new employees would be entitled to sue for unfair dismissal.
Dr John McMullen, an expert on TUPE, is quoted as saying: "If you had an organised grouping of solicitors at a law firm devoted to one client, and that client said 'I do not want this law firm, I will appoint law firm X', then TUPE 2006 could apply so that—contrary to what the client is expecting or wanting—it may find that the lawyers would have the right to turn up at the newly appointed law firm. The definition of 'organised group' can be just one person."
Objections to the new regulations had been raised during consultation. An exemption for professional services firms had apparently been mooted by the government but was eventually ruled out. In 2012, the UK coalition Government sought feedback on the efficacy of TUPE in relation to professional services and found that there were “mixed views” about whether professional services should continue to be covered by the service provision change regime. In certain sectors, particularly advertising, there was strong support for the idea of introducing an exemption. However, lawyers have highlighted problems with the operation of the New Zealand equivalent of TUPE and warned the Government to be cautious in trying to exclude certain groups of employees.
There are potential problems for employees as well. An employee might not want to transfer to the new employer. But they have no option to seek redundancy from their current employer, even though their post is effectively being deleted. They must either transfer against their will, or resign their employment.
Read more about this topic: Transfer Of Undertakings (Protection Of Employment) Regulations 2006
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