TUPE Advice Lawyers

When does TUPE apply?

There are two situations where TUPE applies:
1. A business (or part of a business) transfer – i.e. a transfer of economy entity which retains its identity
2. A service provision change e.g. a contract is reassigned due to a new contractor winning a business tender

Employee rights under TUPE

If TUPE applies, the impacted employee’s rights are protected under employment law, regardless of their length of service – TUPE cannot be ignored by new employers.

The new employer takes over the employee’s contract of employer on the same terms and conditions. Key provisions, such as holiday entitlement and continuous employment, remains the same. Positive changes can be made to the contract, such as increased holiday entitlement, but this must be agreed by both employer and employee. An unwanted change in contractual terms could amount to a breach of contract.

Any dismissal related to the TUPE transfer may be automatically unfair – there is no requirement for the employee to have two years’ service to make a claim. However, it is worth noting that any dismissal made after the transfer may be fair if it relates to an ‘economical, technical, or organisational’ reason. For example, if there has been technological advances that means the job role is no longer needed. The employee may still be entitled to a redundancy payment.

What is required for an employer to comply with TUPE regulations?

Before the transfer takes place, the new employer should request key employment information about each employee from the previous employer, such as:

– Name
– Age
– Employment details
– Any records of grievance proceedings, disciplinary proceedings, employment tribunal action, etc

This will allow the new employer to firstly review whether they wish to go ahead with the transfer, and secondly it will allow the new employer to consider whether any additional warranties or indemnities are required as part of the TUPE transfer.

Employees should be informed and consulted throughout the TUPE transfer. This may require discussions with a trade union representative or an employee representative.

Employees should be aware of:
– The transfer itself i.e. the necessary details such as timescale for the transfer;
– The impact of the transfer on the employee;
– Whether any re-organisation will be required.

Failure to inform and consult employees of the transfer can result in significant compensation of up to 13 weeks’ pay being awarded to impacted employees. Therefore, it is vital that the old employer and the new employer carry out the TUPE transfer transparently.

If you are an employer considering a TUPE transfer, contact us for expert advice. We have great experience in guiding employers through the TUPE process, ensuring our client’s interests are protected.

Our services include:
– Drafting and preparing the transfer documentation;
– Reviewing employee information;
– Advising on liability issues; and
– Informing and consulting with impacting employees.