Northern Ireland says ‘no’ to TUPE changes

Northern Ireland’s Department for the Economy has published its formal response to the Good Jobs consultation, a wide-ranging plan to modernise employment rights and bring Northern Ireland more closely into line with Great Britain. It’s one of the most significant reviews of employment law in over a decade and has already prompted a lot of interest from HR professionals with staff in Northern Ireland.

In recent weeks we’ve looked at some of the headline proposals including zero hours contracts, holiday pay, the right to disconnect, and union access and recognition. But another important area covered in the consultation is TUPE - the Transfer of Undertakings (Protection of Employment) Regulations. The government has now confirmed its position on that – there will be no changes. Why is that? It seems the government deems TUPE to be too complex and so any changes will come later, if they come at all – not ideal for the many businesses hoping for simplification. 

The Way Forward response paper confirms that Northern Ireland will not adopt the recent TUPE changes introduced in Great Britain — at least not for now. Those changes allow smaller businesses to consult directly with affected employees in a transfer, without needing to elect representatives. Specifically, the GB rules now apply this exemption to employers with fewer than 50 employees, or where fewer than 10 staff are transferring.

In Northern Ireland, those exemptions do not currently apply. The government says it recognises the complexity of TUPE and that it wants to engage further with stakeholders before making any decisions. So, for the time being, all employers involved in TUPE transfers in Northern Ireland must continue to consult through elected representatives, even for small transfers or micro businesses.

That creates a point of divergence with the position in GB. For HR teams operating across both jurisdictions, it adds another layer of complexity - different rules, different consultation thresholds. The Department says it will continue to monitor the situation in GB, where further consultation is expected, but any changes in NI will come later and are not part of their upcoming Employment Rights Bill.

So, let’s explore that in more detail. Earlier I spoke to Belfast-based employment lawyer Laura McManus to get her thoughts on what this means in practice: 

Laura McManus: “It’s status quo for Northern Ireland when it comes to TUPE and, again, we're out of step even further with GB. The way I always explain it to clients is, if you want to think about the TUPE regulations in Northern Ireland think about them pre 2014 in GB and we're still in that 2014 space. So we have no micro exemption and I suppose it's on the back burner. So it's always really important for clients, HR, professionals in particular, to just have a little light bulb going off in the back of their head, ah, it’s Northern Ireland, it’s different, I need to double check here and not simply proceed on the basis it's a micro exemption or under the 2014 regulations as they would apply in GB.”

Joe Glavina: “The time frames are different in Northern Ireland aren’t they Laura and that’s a key point isn’t it?” 

Laura McManus: “Yes, exactly, specifically around our consultation period. So our consultation periods are different. We still have for, TUPE transfers of over 100 employees, we are at 90-day consultation, where GB is at 45. That's a really significant detail and if you try to move forward at 45 days in Northern Ireland, if you have a union, or if you have a well versed employee rep, they're going to be saying, ah, no, and it could, potentially, at best be embarrassing and at worst financially a troubling situation if you haven't applied the correct reference period for consultation and for informing and consulting with the employee reps.”

Joe Glavina: “In your experience, Laura, have you ever come across those mistakes being made by your clients?”

Laura McManus: “Frequently, honestly, frequently, and it's quite often where there is a sale going on and it's being run from England. The differences between Northern Ireland and GB are significant across the board and it is a pet peeve of the tribunal if the law in GB is applied to Northern Ireland. I’ve had many times in tribunals where I've been told, Miss McManus, you will tell your client to update this document, this pro forma that they're using, for example with the Equality Act, which doesn't apply in Northern Ireland, and as soon as the tribunal see that the company is automatically almost dropped down a couple of notches in the tribunal’s expectations or estimations because they're just going well, they don't know we're different, how do we know that they've acted appropriately, and it's all the more difficult a starting point. So I would strongly say to anybody, if it's Northern Ireland, just sense check it. We can very quickly say to you, yes, you're on the right lines, off you go, don't worry, or no, come back to us, let’s have a bit of a chat around this, have you thought about this, have you thought about that? You know, at the end of the day, we're here to support you and we'll make it as easy or in depth as you want it to be. But, yes, it's always have that light bulb, ah, Northern Ireland, little bit different.” 

The Northern Ireland government’s response paper is called ‘The Way Forward’ and was published on 28 April. It sets out in detail the outline proposals for a new Employment Bill which covers issues including zero hours contracts, holiday pay, the right to disconnect and trade union access and recognition. Laura has already talked to this programme about all four of those issues and those programmes are available now for viewing from the Out-Law website. We’ve included links to them in the transcript of this programme for you.

- Link to HRNews programme: ‘Northern Ireland moves ahead with new right to disconnect’

- Link to HRNews programme ‘Northern Ireland confirms crackdown on zero hours contracts’

- Link to HRNews programme: ‘NI aligns holiday pay with GB but omits two-year backstop’

- Link to ‘Northern Ireland moves closer to stronger union access rights’

- Link to ‘Good Jobs’ Employment Rights Bill – The Way Forward