This business burden obsessed government

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog


Although the government’s proposed changes to the TUPE regulations will benefit employers and employers alone, there’s little evidence that they actually want them.


At a recent meeting of the influential Westminster Policy Forum, a number of representatives from City law firms – employers’ lawyers – said there was no appetite among bosses for the reforms.


And for good reason. Employers appreciate the certainty that the 2006 amendments relating to service provision changes (SPCs) – which happen when work is outsourced, taken back in house, or when the contractor providing the work changes – afford.


Certainly, no clamour for change emerged from the BIS call for evidence on the issue last year. The majority of respondents wanted to retain SPCs.


Our response to the TUPE regulations consultation, reported in this week’s LELR points out that until 2007 there was a steady stream of appeals to the Court of Appeal, and even to the Court of Justice, dealing with the fundamental issues relating to whether there had been a transfer under the 1981 version of TUPE.


But the introduction of SPCs in 2006 changed all that. There have been a handful of appeals to the employment appeal tribunal, but the existence of SPCs has greatly reduced the scope for dispute as to whether TUPE applies.


Inevitably, that’s a problem for this business burden obsessed government. As with its resolve to remove strict liability from health and safety laws because they provide certainty over an employer’s responsibility for a workplace accident caused by a breach of the regulations, it is determined to free up employers to try to circumvent the TUPE rules.


That doing so will mean more litigation and cost for employers seems not to have occurred to ministers, though it has to businesses – hence their support for the status quo.


Appallingly, the government’s justification is that, anecdotally, employers have been seeking legal advice on how to avoid TUPE or at least mitigate its effects. There’s no evidence this is widespread, and the comments of the City boys this week would imply it isn’t.


There will always be employers who try to get around the rules. It’s what keeps union reps and union lawyers so busy. But it doesn’t mean the rules are wrong, anti-competitive, damaging to the economy or a deterrent to employing people.


Neither does it mean that businesses who want to be free not to respect workers’ rights are entrepreneurs while everyone else is in hock to employment lawyers, as was implied by business minister Michael Fallon during last Tuesday’s Commons debates on the equally illogical shares for rights scheme.


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