The last few months of 2013 have seen some major developments in relation to Transfers of Undertakings.
The reforms for TUPE in GB were published by the Department for Business Innovation and Skills (BIS) in September and changes will take place in January 2014. The draft Regulations for GB were published just last week:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/254738/bis-13-1272-draft-tupe-regulations-2013.pdf

In Northern Ireland, a draft TUPE response document has been finalised and is undergoing internal discussion. DEL hopes to have approval to publish the document in December, with any required legislative amendments taking place in 2014.

The TUPE developments in GB, many of which are likely to be applied in NI, include:

Employee Liability Information:The Government has decided to retain the requirement for the transferor to provide employee information to the transferee but the minimum period will be 28 days before the transfer, not 14 days.

Transferee service: providers considering redundancies will no longer have to wait until after the transfer occurs to consult collectively will be able to engage collective redundancy consultation with employee representatives prior to any transfer, subject to conditions. Redundancies could therefore be made more quickly post-transfer. We will need to see how "meaningful" will be interpreted.

Harmonising Ts & Cs: The Government intends to discuss within the EU potential benefits of allowing harmonisation of terms and conditions post-transfer. Pending any EU-wide changes, the GB TUPE Regs will be amended to clarify that TUPE does not invalidate the use of pre-transfer flexibility and mobility clauses.

Negotiation and Application of Collective Agreements: After one year, transferees will be able to renegotiate collective Ts & Cs with unions, provided changes are no less favourable overall to the employees.

Change of Location Redundancies: NI has separate Service Provision Change Regulations but these currently mirror the GB requirements within the 2006 TUPE Regs in GB. SPCs often involve a change of location. The changes will remove the automatic unfairness from dismissals of those employees unwilling to relocate where they might otherwise be fair redundancies.

Case Law Examples:
Not only will the TUPE Regs themselves be changing, there have been many important cases of late in relation to TUPE laws, including:

Rynda (UK) Ltd v Rhijnsburger – The definition of an ‘organised grouping of employees’ should focus on the activities of employees and the intent of the employer

Alemo-Herron and ors v Parkwood Leisure Ltd – the CJEU rules on the ‘static’ v ‘dynamic’ interpretation of collective agreements

Lorne Stewart Plc v Hyde & Ors - in SPCs the focus should be on practice and on the facts, is there a service provision change and, if so, are the relevant employees assigned to an organised grouping of employees?

Visteon Engineering Services Ltd v Oliphant & Ors – a 13 year-old collective agreement continues to apply

Bangura v Southern Cross Healthcare Group Plc & Anor – the impact of internal appeals on the transfer of unfair dismissal claims to the transferee

Ceva Freight UK Ltd v Seawell Limited – Difficulties in meeting the ‘organised grouping’ condition

I Lab Facilities Ltd v Metcalfe & Ors – Definition of ‘affected employees’ for collective consultation purposes

Shields Automotive Ltd v Langdon & Anor – guide to award size in failure to consult claims

Unison v Capita Business Services Ltd – Protective awards and agency workers